THE FEDERAL GOVERNMENT: 



TRUE NATURE AOT) CHARACTER 



BEING A REVIEW 

OP 

JUDGE STORY'S COMMENTARIES 

ON THE 

CONSTITUTION OF THE UNITED STATES. 

BY ABEL P. UPSHUR. 



\7ITHAN INTRODUCTION, AND COPIOUS CRIT- 
ICAL AND EXPLANATORY NOTES, 
BY 

C. CHAUNCEY BURR. 



NEW YORK: 
VAN EVRIE, HORTON & CO,, 

No. 162 NASSAU STREET. 
1868. 



•J- 



\\ 






Entered according to Act of Congress, in the year 1868, by 

VAN EVRIE, HORTON & CO., 

In the Clerk's Office of the District Court of the United States, for 



the Southern District of New York, 



INTRODUCTION BY THE EDITOR. 



The author of this volume was considered one of 
the ablest legal minds in the United States. He 
studied law 'under William Wirt, the eminent au- 
thor of the Life of Patrick Henry, and he prac- 
ticed his profession with great success from 1810 
to 1824. After an interval of retirement, he held 
a high judicial position as Judge of the General 
Court of Virginia, from 1826 to 1841 ; at which 
time he entered Mr. Tyler's Cabinet as Secretary 
of the Navy. On Mr. Webster's retirement, in 
the spring of 1843, Judge Upshur succeeded him 
as Secretary of State. On the 28th of February, 
1844, this eminent jurist and statesman was kill- 
ed by the explosion of the great gun ("Peace- 
maker") on board the steamer Princeton. His 
reputation in private life was as spotless as his 
public fame was exalted and unrivaled. 



11. INTRODUCTION. 

This review of Judge Story's Commentaries on 
the Constitution of the United States is perhaps 
the ablest analysis of the nature and character 
of the Federal Government that has ever been 
published. It has remained unanswered. Indeed, 
we are not aware that any attempt has been 
made to invalidate the soundness of its reason- 
ing. As a law writer, Judge Story has been re- 
garded as one of the ablest of his school, which 
was that of the straightest type of "Federalists " 
of the elder Adams's party. His commentaries 
are a good deal marred with the peculiar parti- 
san doctrines of that school of politicians; indeed, 
they may be looked upon as a plea for the se- 
vere political principles which ruled the adminis- 
tration of President John Adams. The Alien and 
Sedition Laws, which have long since passed into 
a by-word of reproach, will still find abundant 
support in Judge Story's Commentaries. He per- 
petually insisted on construing the Constitution 
from the standpoint of that small and defeated 
party in the Federal Convention which wanted 
to form a goverment on the model of the Eng- 
lish monarchy in everything but the name. This 



INTRODUCTION. 111. 

party was powerful in respoctability and talents, 
but weak or few in numbers ; and after it was 
so signally defeated in the Constitutional Conven- 
tion, it still held on to its monarchical princi- 
ples, and sought to invest the new government 
with kingly powers, notwithstanding the Constitu- 
tion had been constructed upon principles entire- 
ly opposite io its doctrines. In a letter of U 
S. Senator John Langdon, of New Hampshire, to 
Samuel Kinggold, of the date of October 10th, 
1800, he says : " Mr. Adams certainly expressed 
himself that he hoped, or expected to see the 
day when Mr. Taylor, and his friend, Mr. Giles, 
would be convinced that the people of America 
would never be happy without a hereditary Chief 
Magistrate and Senate, or at least for life." Mr. 
Ross, a Senator from Pennsylvania, and a friend 
of the Adams party, left the table of Mr. Hol- 
lines, of Philadelphia, when "the Constitution of 
the United States" was given as a toast. John 
Wood, the historian of the time, speaking of the 
principles of the Federalists, says : " They be- 
stowed unbounded panegyrics upon Alexander 
Hamilton, because this gentleman acted the part 



IV INTRODUCTION. 

of Prime Minister to the President. They thought 
the administration and the government ought to 
be confounded and identified; that the adminis- 
tration was the government, and the government 
the administration ; and that the people ought to 
bow in tame submission to its whim and caprice." 
Writing of Mr. Adams, Jefferson says : " Mr. Adams 
had originally been a Bepublican. The glare of 
royalty and nobility, during his mission in Eng- 
land, had made him believe their fascination to be 
a necessary ingredient in government. His book 
on the American Constitution had made known 
his political bias. He was taken up by the mon- 
archical Federalists in his absence, and was by 
them made to believe that the general disposition 
of our citizens was favorable to monarchy." 

At a dinner given by Mr. Jefferson, when he 
was a member of "Washington's Cabinet, he de- 
clares that, " after dinner, Mr. Adams said : ' Purge 
the British Constitution of its corruption, and 
give to its popular branch equality of representa- 
tion, and it would be the most perfect Constitu- 
tion ever devised by the wit of man.' Hamilton 
replied : ' Purge it of its corruption, and give to 



INTRODUCTION. V. 

its popular branch equality of representation, and 
it would become then an impracticable govern- 
ment. As it stands at present, with all its sup- 
posed defects, it is the most perfect government 
that ever existed.' " Mr. Jefferson adds : " Hamil- 
ton was not only a monarchist, but for a mon- 
archy bottomed on corruption." The Federalists 
having a majority in Congress, passed an act, to 
continue in force during the administration of 
Mr. Adams, declaring that "if any person should 
write or publish, or cause to be published, any 
libel against the Government of the United States, 
or either House of Congress, or against the Pres- 
ident, he shall be punished by a fine not ex- 
ceeding two thousand dollars, and by imprison- 
ment not exceeding two years." A great many 
editors, and other gentlemen, were imprisoned 
under this act. Even to ridicule the President 
was pronounced by the corrupt partisan judges 
a violation of the law. Men were beaten almost 
to death for neglecting to pull off their hats 
when the President was passing, and every man 
who did not instantly prostrate himself before 
the ensigns of Federal royalty, was denounced as 



VI INTRODUCTION. 

the enemy of his country. The following letter, 
addressed to President John Adams by the mer- 
chants of Boston, shows to what lengths that 
pariy had dragged the public mind in the direc- 
tion of monarchy : 

"We, the subscribers, inhabitants and citizens 
of Boston, in the State of Massachusetts, deeply 
impressed with the alarming situation of our coun- 
try, and convinced of the necessity of uniting with 
firmness at this interesting crisis, beg leave to express 
to you, the Chief Magistrate and supreme ruler over 
the United Slates, our fullest approbation of all the 
measures, external and internal, you have pleased to 
adopt, under direction of divine authority. We beg 
leave also to express the high and elevated opinion 
we entertain of your talents, your virtue, your wis- 
dom and your prudence ; and our fixed resolution to 
support, at the risk of our lives and fortunes, such 
measures as you may determine upon to be neces- 
sary for promoting and securing the honor and hap- 
piness of America." 

Any one can see that men who could address 
the President after this fashion, had a great deal 
less respect for the restraints and limitations of 
a written Constitution, than for the will and force 
of individual power. That was the drift of a cer- 
tain portion of public opinion in America at that 



INTRODUCTION. Vll. 

time. But the tyrannical excesses of that party 
soon brought it into such odium, that it was 
driven from power by the election of Mr. Jef- 
ferson to the Presidency. Though defeated, its 
partisans never ceased to labor to drag the Con- 
stitution away from its Democratic foundations, 
by giving the Constitution a construction utterly 
antagonistic to the intentions of the Convention 
which framed and of the States which adopted 
it. The great vice of the Federalists consisted in 
desiring to clothe the Federal Government with 
almost monarchical powers ; whereas the States 
had carefully and resolutely reserved the great 
mass of political power to themselves. The pow- 
ers which they delegated to the Federal Govern- 
ment were few, and were general in their charac- 
ter. Those which they reserved embraced their 
original and inalienable sovereignty, which no State 
imagined it was surrendering when it adopted the 
Constitution. Mr. Madison dwelt with great force 
upon the fact that " a delegated is not a surrender- 
ed power." The States surrendered no powers to the 
Federal Government. They only delegated them. 
The powers of the States are original. Those of the 



V11L INTRODUCTION. 

Federal Government are only derived and secondary ; 
and they were delegated, not for the purpose of aggran- 
dizing the Federal Government, but for the sole pur- 
pose of protecting the rights and sovereignty of " the 
several States." The Federal Government was formed 
by the States for their own benefit The Federal 
Government is simply an agency, commissioned by 
the " several States " for their own convenience and 
safety. In the Convention of Virginia, Patrick Henry 
said : " Liberty, sir, is the primary object. Liberty, 
the greatest of all earthly blessings — give us that 
precious jewel, and you may take away everything 
else." And, with an eloquence more powerful than 
that which shook the throne of Macedon, he demon- 
strated that the battles of the Revolution were 
fought, not to make " a great and mighty empire, " 
but "for liberty." It was for liberty — for the liberty 
of the people of the " several States " — that the Fed- 
eral Government was established. Not for the kingly 
grandeur and power of government, but for the hap- 
piness, safety and liberty of " the people of the sev- 
eral States." Nothing could possibly be stronger than 
the determination pervading the mind of the Federal 
Convention to sacrifice no iota of the essential sov- 



INTRODUCTION. IX. 

ereignty of the States in the formation of the general 
Union. This feeling was most happily expressed by 
Chief Justice Ellsworth, of Connecticut, in the Con- 
vention that framed our Constitution, in the following 
words : 

" I want domestic happiness as well as general se- 
curity. A General Government will never grant me 
this, as it cannot know my wants, nor relieve my dis- 
tress. My State is only as one out of thirteen. Can 
they, the General Government, gratify my wishes? 
My happiness depends as much on the existence of 
my State Government as a new-born infant depends 
upon its mother for nourishment." 

In the Convention of Massachusetts, Fisher Ames 
said : 

" A consolidation of the States would subvert the 
new Constitution, and against which this article is our 
best security. Too much provision cannot be made 
against consolidation. The State Governments repre- 
sent the wishes and feelings, and local interests of the 
people. They are the safeguard and ornament of the 
Constitution ; they will protract the period of our 
liberties ; they will afford a shelter against the abuse 



X. INTRODUCTION. 

of power, and will be the natural avengers of our vio- 
lated rights." 

Such were the views and sentiments of the men 
who framed and who adopted the Federal Constitution. 
But Judge Story belonged to another school of poli- 
ticians, and his Commentaries upon the Constitution 
were written in the interests of the Consolidationists, 
who have ever insisted on giving that instrument an 
interpretation in harmony with their wishes and ideas. 
This review of Judge Upshur, however, does not leave 
a single point of the Federalists heresy unanswered. 
It will ever stand as a text-book of the true theory of 
our government. We are confident that no book has 
ever appeared in this country which so thoroughly 
meets the demands of the present hour. With this 
book in his hand, the Democratic statesman or orator 
ifl armed at every point against the sophistries of the 
foes of State sovereignty and self-government. There 
is no vital point which it does not discuss and settle 
upon the basis of invulnerable truth. 

The Notes which we have added, we hop3, will be 
found useful to the unprofessional reader. They will 
show that the author's reasoning is confirmed by our 



INTRODUCTION. XI. 

Constitutional history and by the early decisions of 
the Supreme Court. 

In every instance, our own Notes are distin- 
guished from those of the author by our initials — 
"C. C. R* 



CONTENTS. 



CHAPTER I. 

PAGE. 

Character of Judge Story's Commentaries 17 

CHAPTER II. 

The Non-relation of the Colonies to each other—they were 
not One People 27 

CHAPTER III 
Relation of the Colonies to each other 43 

CHAPTER IV. 

The Nature and Extent of Powers exercised by the Revolu- 
tionary Government did not make the Colonies One 
People 62 

CHAPTER V. 

The Declaration of Independence did not Consolidate the 
Colonies into One People 79 



CONTENTS. 

CHAPTER VI. 

PAGE. 

The Articles of Confederation did not impair the Sovereign- 
ty of the States, nor Consolidate them into One People. . . 94 

CHAPTER VII. 

The Constitution did not change the sovereign attitude of 
the States, nor Consolidate them into a National Govern- 
ment 97 

CHAPTER VIII. 

The Union a Confederation, and not a National Govern- 
ment 143 

CHAPTER IX. 

Extent and Limit3 of the Jurisdiction of the Supreme Couit 
of the United States ICO 

CHAPTER X. 

Structure and Functions of the House of Representatives. . 213 



PREFACE BY THE AUTHOR. 



The book to which the following pages relate has 
been for several years before the public. It has been 
reviewed by some of the principal periodicals of the 
country, and recommended in the strongest terms to 
public favor. I have no disposition to detract from 
its merits as a valuable compendium of historical 
facts, or as presenting just views of the Constitution 
in many respects. My attention has been directed to 
its political principles alone, and my sole purpose has 
been to inquire into the correctness of those princi- 
ples, so far as they relate to the true nature and char- 
acter of our Federal Government. 

It may well excite surprise that so elaborate a work 
as this of Judge Story, and one so well calculated to 
influence public opinion, should have remained so 
long unnoticed by those who do not concur in the au- 
thor's views. No one can regret this circumstance 
more than I do ; for I would willingly have devolved 
upon abler hands the task which I now have under- 
taken. I offer no apology for the manner in which 



PREFACE. Xlll. 

that task has been performed. It is enough for me to 
say, that the reader, howsoever favorable his opinion 
of this essay may be, will not be more sensible of its 
imperfections than I am. I know that the actual 
practice of the Federal Government for many years 
past, and the strong tendencies of public opinion in 
favor of federal power, forbid me to hope for a favor- 
able reception, except from the very few who still 
cherish the principles which I have endeavored to re- 
establish. 

The following essay was prepared about three years 
ago, with a view to its publication in one of our peri- 
odical reviews. Circumstances, which it is unneces- 
sary to mention, prevented this from being done, and 
the w T ork was laid aside and forgotten. My attention 
has been again called to it within a few weeks past, 
and I am now induced to give it to the public, under 
the hope that it may not be without its influence in 
directing the attention of those who have not yet lost 
all interest in the subject, to the true principles of 
our constitution of government. 

I do not claim the merit of originality. My con- 
clusions are drawn from the authentic information of 
history, and from a train of reasoning, wh'ch will oc- 
cur to every mind, on the facts which history dis- 
closes. My object will be answered, if even the few 
by whom these pages will probably be read shall be 
induced to re-examine, with a sincere desire after 
truth, the great principles upon which political parties 
in cur country were once divided, but which there is 



XVI. PREFACE. 

much reason to fear are no longer respected, even if 
they be not wholly forgotten. 

I do not offer this essay as a commentary on the 
Federal Constitution. Having proposed to myself 
but a single object, I have endeavored to compress 
my matter within as small a compass as possible, con- 
sistent with a due regard to clearness, and a proper 
reference to authorities, where authorities are re- 
lied on. 



THE 



FEDERAL GOVERNMENT: 

ITS TRUE NATURE AM) CHARACTER. 



CHAPTEE I. 

THE CHARACTER OF JUDGE STORY'S COMMENTARIES ON THE 
CONSTITUTION. 

It came within the range of Judge Story's duties, 
as Dane Professor of Law in Harvard University, 
to expound and illustrate the Constitution of the 
United States. His lectures upon that subject have 
been abridged by himself, and published in a sepa- 
rate volume. Although the work is given to the 
public as an abridgment, it is nevertheless, as it 
professes to be, "a full analysis and exposition of 
the constitution of government of the United States ;" 
and presents, in the opinion of the author himself, 
the "leading doctrines" of the original, "so far as 
they are necessary to a just understanding of the 
actual provisions of the Constitution." The author 
professes to have compiled it " for the use of colleges 
and high schools ;" but as it contains all the important 



18 THE ELDERAF GOVERNMENT : 

historical facts, and all the leading reasons upon which 
his own opinions have been based, and as it has been 
prepared with elaborate care in other respects, we may 
reasonably suppose, without impeaching his modesty, 
that he expected it to be received as a complete work. 
It is, indeed, quite as full as any such work needs to 
be, for any purpose, except, perhaps, the very first les- 
sons to the student of constitutional law. The poli- 
tician and the jurist may consult it, with a certainty 
of finding all the prominent topics of the subject fully 
discussed. 

A work presenting a proper analysis and correct 
views of the Constitution of the United States has long 
been a desideratum with the public. It is true that the 
last fifteen years have not been unfruitful in comment- 
aries upon that instrument ; such commentaries, how- 
ever, as have, for the most part, met a deserved fate, in 
immediate and total oblivion. Most of them have 
served only to throw ridicule upon the subject which 
they professed to illustrate. A few have appeared, 
however, of a much higher order, and bearing the 
stamp of talent, learning, and research. Among these, 
the work before us, and the Commentaries of Chief 
Justice Kent, hold the first rank. Both of these works 
are, as it is natural they should be, strongly tinctured 
with the political opinions of their respective authors ; 
and as there is a perfect concurrence between them in 
this respect, their joint authority can scarcely fail to 
exert a strong influence upon public opinion. It is 
much to be regretted that some one, among the many 



ITS TRUE NATURE AND CHARACTER. 19 

who differ from theni in their views of the Constitu- 
tion, and who possess all the requisite qualifications 
for the task, should not have thought it necessary to 
vindicate his own peculiar tenets, in a work equally 
elaborate, and presenting just claims to public atten- 
tion. The authority of great names is of such im- 
posing weight, that mere reason and argument can 
rarely counterpoise it in the public mind ; and its pre- 
ponderance is not easily overcome, except by adding 
like authority to the weight of reason and argument, 
in the opposing scale. I hope it is not yet too late for 
this suggestion to have its effect upon those to whom 
it is addressed. 

The first commentary upon the Constitution, the 
Federalist, is decidedly the best which has yet ap- 
peared. The writers of that book were actors in all 
the interesting scenes of the period, and two of them 
were members of the convention which formed the 
Constitution. Added to this, their extensive informa- 
tion, their commanding talents, and their experience 
in great public affairs, qualified them, in a peculiar 
degree, for the task which they undertook. Neverthe- 
less, their great object was to recommend the Constitu- 
tion to the people, at a time when it was very uncer- 
tain whether they would adopt it or not ; and hence 
their work, although it contains a very full and philo- 
sophical analysis of the subject, comes to us as a mere 
argument in support of a favorite measure, and, for 
that reason, does not always command our entire con- 
fidence. Besides, the Constitution was then untried, 



20 THE FEDERAL GOVERNMENT I 

and its true character, which is to be learned only 
from its practical operation, could only be conjectured. 
Much has been developed, in the actual practice of the 
government, which no politician of that day could 
either have foreseen or imagined. Xew questions have 
arisen, not then anticipated, and difficulties and em- 
barrassments, wholly unforeseen, have sprung from new 
events in the relation of the States to one another, and 
to the general government. Hence the Federalist can- 
not be relied on, as full and safe authority in all cases. 
It is, indeed, matter of just surprise, and affording the 
strongest proof of the profound wisdom and far-seeing 
sagacity of the authors of that work, that then' views 
of the Constitution have been so often justified in the 
course of its practical operation. Still, however, it 
must be admitted that the Federalist is defective in 
some important particulars, and deficient in many 
more. The Constitution is much better understood at 
this day than at the time of its adoption. This is not 
true of the great principles of civil and political liberty, 
which he at the foundation of that instrument ; but it 
is emphatically true of some of its provisions, which 
were considered at the time as comparatively unim- 
portant, or so plain as not to be misunderstood, but 
which have been shown, by subsequent events, to be 
pregnant with the greatest difficulties, and to exert the 
most important influence upon the whole character of 
the government. Contemporary expositions of the 
Constitution, therefore, although they should be re- 
ceived as authority in some cases, and may enlighten 



ITS TKUE NATURE AND CHARACTER. 21 

our judgments in most others, cannot be regarded as 
safe guides, by the expounder of that instrument at 
this day. The subject demands our attention now as 
strongly as it did before the Federalist was written.* 

It is not surprising, therefore, that the work now 
tinder consideration should have been hailed with 
pleasure and received with every favorable disposi- 
tion. Judge Story fills a high station in the judiciary 
of the United States, and has acquired a character, for 
talents and learning, which ensures respect to what- 
ever he may publish under his own name. His duty, 
as a Judge of the Supreme Court, has demanded of 
him frequent investigations of the nicest questions of 
constitutipnal law ; and his long service in that capa- 
city has probably brought under his review every pro- 
vision of that instrument in regard to which any dif- 
ference of opinion has prevailed. Assisted as he has 
been by the arguments of the ablest counsel, and by 
the joint deliberations of the other judges of the 
court, it would be indeed wonderful, if he should 
hazard his well-earned reputation as a jurist, upon 

* General Hamilton, one of the principal writers of the Federalist, was 
undoubtedly at heart a monarchist. On more than one occasion he plainly 
avowed himself such. In the convention which framed the Constitution 
he exerted his commanding influence to impart centralized, consolidated, 
or monarchical powers to the Federal Union. But, signally failing in this? 
in his subsequent interpretations of the Constitution he did what he could 
to bend the instrument to suit his views. Judge Story and Chief Justice 
Kent, and, earlier, Chief Justice Jay, belonged to the same political party as 
General Hamilton. They were Federalists, and so odious did this party be- 
come to the American people, that it was driven out of power at the expira- 
tion of old John Adams's single presidential term in 1800.— [C. C. B.] 



22 THE FEDERAL GOVERNMENT : 

any hasty or unweighed opinion, upon subjects so 
grave and important. He has also been an attentive 
observer of political events, and although by no means 
obtrusive in politics, has yet a political character, 
scarcely less distinguished than his character as a 
jurist. To all these claims to public attention and 
respect, may be added a reputation for laborious re- 
search, and for calm and temperate thinking. A work 
on the Constitution of the United States, emanating 
from such a source, cannot fail to exert a strong influ- 
ence upon public opinion, and it is, therefore, pecu- 
liarly important that its real character should be 
understood. Whatever may be the cast of its political 
opinions, it can scarcely fail to contain many valuable 
truths, and much information which will be found use- 
ful to all classes of readers. And, so far as its political 
opinions are concerned, it is of the highest importance 
to guard the public mind against the influence which 
its errors, if errors they be, may borrow from the mere 
authority of the distinguished name under which they 
are advanced. 

The plan of the work before us is very judicious. 
In order to a correct understanding of the Constitu- 
tion, it is absolutely necessary to understand the situ- 
ation of the States before it was adopted. The author, 
acting upon this idea, distributes his work into three 
great divisions. " The first will embrace a sketch of 
the charters, constitutional history, and ante-revolu- 
tionary jurisprudence of the Colonies. The second 
will embrace the constitutional history of the States, 



ITS TRUE NATURE AND CHARACTER. 23 

during the Kevolution, and the rise, progress, decline, 
and fall of the Confederation. The third will embrace 
the history of the rise and adoption of the Constitu- 
tion, and a full exposition of all its provisions, with 
the reasons on which they were respectively founded, 
the objections by which they were respectively assailed, 
and such illustrations drawn from contemporaneous 
documents, and the subsequent operations of the gov- 
ernment, as may best enable the reader to estimate for 
himself, the true value of each." This plan is at once 
comprehensive and analytical. It embraces every topic 
necessary to a full understanding of the subject, while, 
at the same time, it presents them in the natural order 
of investigation. It displays a perfect acquaintance 
with the true nature of the subject, and promises every 
result which the reader can desire. The first part re- 
lates to a subject of the greatest interest to every 
American, and well worthy the study of philosophical 
enquirers, all over the world. There is not, within the 
whole range of history, an event more important, with 
reference to its effects upon the world at large, than 
the settlement of the American Colonies. It did not 
fall within the plan of our author to enquire very ex- 
tensively, or very minutely, into the mere history of 
events which distinguished that extraordinary enter- 
prise. So far as the first settlers may be regarded as 
actuated by avarice, by ambition, or by any other of 
the usual motives of the adventurer, their deeds be- 
long to the province of the historian alone. "We, how- 
ever, must contemplate them in another and a higher 



24 THE FEDERAL GOVERNMENT I 

character. A deep and solemn feeling of religion, and 
an attachment to, and an understanding of, the princi- 
ples of civil liberty, far in advance of the age in which 
they lived, suggested to most of them the idea of seek- 
ing a new home and founding new institutions in the 
western world. To this spirit we are indebted for all 
that is free and liberal in our present political systems. 
It would be a work of very great interest, and alto- 
gether worthy of the political historian, to trace the 
great principles of our institutions back to their 
sources. Their origin would probably be discovered 
at a period much more remote than is generally sup- 
posed. We should derive from such a review much 
light in the interpretation of those parts of our sys- 
tems, as to which we have no precise rules in the 
language of our constitutions of government. It is 
to be regretted that Judge Story did not take this 
view of the subject. Although not strictly required 
by the plan of his work, it was, nevertheless, altogether 
consistent with it, and would have added much to its 
interest with the general reader. His sources of his- 
torical information were ample, and his habits and the 
character of his mind fitted him well for such an inves- 
tigation, and for presenting the result in an analytical 
and philosophical form. He has chosen, however, to 
confine himself within much narrower limits. Yet, 
even within those limits, he has brought together a 
variety of historical facts of great interest, and has 
presented them in a condensed form, well calculated to 



ITS TRUE NATURE AND CHARACTER. 25 

make a lasting impression on the memory. The brief 
sketch which he has given of the settlement of the 
several colonies, and of the charters from which they 
derived their rights and powers as separate govern- 
ments, contains much to enable us to understand fully 
the relation which they bore to one another and to the 
mother country. This is the true starting point in the 
investigation of those vexed questions of constitutional 
law which have so long divided political parties in the 
United States. It would seem almost impossible that 
any two opinions could exist upon the subject ; and 
yet the historical facts, upon which alone all parties 
must rely, although well authenticated and compara- 
tively recent, have not been understood by all men 
alike. Our author was well aware of the importance 
of settling this question at the threshold of his work. 
Many of the powers which have been claimed for the 
Federal Government, by the political party to which he 
belongs, depend upon a denial of that separate ex- 
istence, and separate sovereignty and independence, 
which the opposing party has uniformly claimed for 
the States. It is, therefore, highly important to the 
correct settlement of this controversy, that we should 
ascertain the precise political condition of the several 
colonies prior to the Kevolution. This will enable us 
to determine how far Judge Story has done justice to 
his subject, in the execution of the first part of his 
plan ; and by tracing the colonies from their first es- 
tablishment as such, through the various stages of 



26 THE FEDERAL GOVERNMENT : 

their progress tip to the adoption of the Federal Con- 
stitution, we shall be greatly aided in forming a cor- 
rect opinion as to the true character of that instru- 
ment 



ITS TRUE NATURE AND CHARACTER. 27 



CHAPTEE II. 

THE NON-RELATION OF THE COLONIES TO EACH OTHER — 
THEY WERE NOT ONE PEOPLE. 

It appears to be a favorite object of Judge Story to 
impress upon the mind of the reader, at the very com- 
mencement of his work, the idea that the people of 
the several colonies were, as to some objects, which he 
has not explained, and to some extent, which he has 
not defined, "one people." This is not only plainly in- 
ferable from the general scope of the book, but is ex- 
pressly asserted in the following passage : " But al- 
though the colonies were independent of each other in 
respect to their domestic concerns, they were not 
wholly alien to each other. On the contrary, they 
were fellow-subjects, and for many purposes one peo- 
ple. Every colonist had a right to inhabit, if he 
pleased, in any other colony, and as a British subject 
he was capable of inheriting lands by descent in every 
other colony. The commercial intercourse of the colo- 
nies, too, was regulated by the general laws of the 
British empire, and could not be restrained or ob- 
structed by colonial legislation. The remarks of Mr. 
Chief Justice Jay are equally just and striking : 'All 
the people of this country were then subjects of the 



28 THE FEDERAL GOVERNMENT : 

King of Great Britain, and owed allegiance to him, and 
all the civil authority then existing or exercised here 
flowed from the head of the British empire. They 
were in a strict sense fellow-subjects, and in a variety of 
respects one people. When the Revolution commenced, 
the patriots did not assert that only the same affinity 
and social connection subsisted between the people of 
the colonies, which subsisted between the people of 
Gaul, Britain, and Spain, while Roman provinces, to 
wit, only that affinity and social connection which re- 
sults from the mere circumstance of being governed by 
the same prince.' " 

In this passage the author takes his ground dis- 
tinctly and boldly. The first idea suggested by the 
perusal of it is, that he discerned very clearly the 
necessity of establishing his position, but did not dis- 
cern quite so clearly by what process of reasoning he 
was to accomplish it. If the passage stood alone, it 
would be fair to suppose that he did not design to ex- 
tend the idea of a unity among the people of the 
colonies beyond the several particulars which he has 
enumerated. Justice to him requires that we should 
suppose this ; for, if it had been otherwise, he would 
scarcely have failed to support his opinion by pointing 
out some one of the " many purposes," for which the 
colonies were, in his view of them, " one people." The 
same may be said of Mr. Chief Justice Jay. He also 
has specified several particulars in which he supjoosed 
this unity to exist, and arrives at the conclusion, that 
the people of the several colonies were, " in a variety 



ITS TRUE NATURE AND CHARACTER. 29 

of respects, one people." In what respect they were 
" one," except those which he has enumerated, he does 
not say, and of course it is fair to presume that he 
meant to rest the justness of his conclusion upon them 
alone. The historical facts stated by both of these 
gentlemen are truly stated ; but it is surprising that it 
did not occur to such cool reasoners, that every one of 
them is the result of the relation between the colonies and 
the mother country, and not the result of the relation be- 
tween the colonies themselves. Every British subject, 
whether born in England proper or in a colony, has a 
right to reside anywhere within the British realm ; and. 
this by the force of British laws. Such is the right of 
every Englishman, wherever he may be found. As to 
the right of the colonist to inherit lands by descent in 
any other colony than his own, Judge Story himself in- 
forms us that it belonged to him " as a British sub- 
ject." That right, indeed, is in consequence of his 
allegiance. By the policy of the British constitution 
and laws, it is not permitted that the soil of her terri- 
tory should belong to any from whom she cannot de- 
mand all the duties of allegiance. This allegiance is 
the same in all the colonies as it is in England proper ; 
and, wherever it exists, the correspondent right to own 
and inherit the soil attaches. The right to regulate 
commercial intercourse among her colonies belongs, of 
course, to the parent country, unless she relinquishes 
it by some act of her own ; and no such act is shown 
in the present case. On the contrary, although that 
right was resisted for a time by some of the American 



30 THE FEDERAL GOVERNMENT : 

colonies, it was fully yielded, as our author himself in- 
forms us, by all those of New England, and I am not 
informed that it was denied by any other. Indeed, the 
supremacy of Parliament, in most matters of legisla- 
tion which concerned the colonies, was generally — nay, 
universally — admitted, up to the very eve of the Kevo- 
lution. It is true, the right to tax the colonies was de- 
nied, but this was upon a wholly different principle. 
It was the right of every British subject to be exempt 
from taxation, except by his own consent ; and as the 
colonies were not, and from their local situation could 
not be, represented in Parliament, the right of that 
body to tax them was denied, upon a fundamental 
principle of English liberty. But the right of the 
mother country to regulate commerce among her colo- 
nies is of a different character, and it never was denied 
to England by her American colonies, so long as a 
hope of reconciliation remained to them. In like man- 
ner, the facts relied on by Mr. Jay, that " all people of 
this country were then subjects of the King of Great 
Britain, and owed allegiance to him " and that " all 
the civil authority then existing or exercised here 
flowed from the head of the British empire," are but 
the usual incidents of colonial dependence, and are by 
no means peculiar to the case he was considering. 
They do, indeed, prove a unity between all the colo- 
nies and the mother country, and show that these, taken 
altogether, are in the strictest sense of the terms, " one 
people ;" but I am at a loss to perceive how they prove, 
that two or more parts or subdivisions of the samo 



ITS TRUE NATURE AND CHARACTER. 31 

empire necessarily constitute " one people." If this 
be true of the colonies, it is equally true of any two or 
more geographical sections of England proper ; for 
every one of the reasons assigned applies as strictly to 
this case as to that of the colonies. Any two countries 
may be " one people/' or " a nation de facto," if they 
can be made so by the facts that their people are 
" subjects of the King of Great Britain, and owe alle- 
giance to him," and that " all the civil authority exer- 
cised therein flows from the head of the British em- 
pire." 

It is to be regretted that the author has not given us 
his own views of the sources from which these several 
rights and powers were derived. If they authorize his 
conclusion, that there was any sort of unity among the 
people of the several colonies, distinct from their com- 
mon connection with the mother country, as parts of 
the same empire, it must be because they flowed from 
something in the relation betwixt the colonies them- 
selves, and not from their common relation to the 
parent country. Nor is it enough that these rights 
and powers should, in point of fact, flow from the rela- 
tion of the colonies to one another ; they must be the 
necessary result of their political condition. Even ad- 
mitting, then, that they would, under any state of cir- 
cumstances, warrant the conclusion which the author 
has drawn from them, it does not follow that the con- 
clusion is correctly drawn in the present instance. 
For aught that he has said to the contrary, the right 
of every colonist to inhabit and inherit lands in every 



32 THE FEDERAL GOVERNMENT : 

colony, whether his own or not, may have been derived 
from positive compact and agreement among the col- 
onies themselves ; and this presupposes that they were 
distinct and separate, and not "one people." And 
so far as the rights of the mother country are concern- 
ed, they existed in the same form, and to the same ex- 
tent, over every other colony of the empire. Did this 
make the people of all the colonies " one people ?" If 
so, the people of Jamaica, the British East India pos- 
sessions, and the Canadas are, for the very same rea- 
son, " one people " at this day. If a common alle- 
giance to a common sovereign, and a common subordi- 
nation to his jurisdiction, are sufficient to make the 
people of different countries " one people," it is not 
perceived (with all deference to Mr. Chief Justice Jay) 
why the people of Gaul, Britain, and Spain might not 
have been "one people," while Boman provinces, 
notwithstanding " the patriots " did not say so. The 
general relation between the colonies and the parent 
country is as well settled and understood as any other, 
and it is precisely the same in all cases, except where 
special consent and agreement may vary it. "Whoever, 
therefore, would prove that any peculiar unity existed 
between the American colonies, is bound to show 
something in their charters, or some peculiarity in 
their condition, to exempt them from the general rule. 
Judge Story was too well acquainted with the state of 
the facts to make any such attempt in the present 
case. The Congress of the nine colonies, which as- 
sembled at New York, in October, 1765, declare, that 



ITS TRUE NATURE AND CHARACTER. 33 

the colonists " owo the same allegiance to the Crown 
of Great Britain, that is owing from his subjects born 
within the realm, and all due subordination to that au- 
gust body, the Parliament of Great Britain." '* That 
the colonists are entitled to all the inherent rights and 
liberties of his [the King's] natural born subjects 
within the Kingdom of Great Britain." We have here 
an all-sufficient foundation of the right of the Crown 
to regulate commerce among the colonies, and of the 
right of the colonists to inhabit and to inherit land in 
each and all the colonies. They were nothing more 
than the ordinary rights and liabilities of every British 
subject ; and, indeed, the most that the colonies ever 
contended for was an equality, in these respects, with 
the subjects born in England. The facts, therefore, 
upon which Judge Story's reasoning is founded, spring 
from a different source from that from which he is 
compelled to derive them, in order to support his con- 
clusion. 

So far as Judge Story's argument is concerned, the 
subject might be permitted to rest here. Indeed, one 
would be tempted to think, from the apparent care- 
lessness and indifference with which the argument is 
urged, that he himself did not attach to it any par- 
ticular importance. It is not his habit to dismiss 
grave matters with such light examination, nor does it 
consist with the character of his mind to be satisfied 
with reasoning which bears even a doubtful relation to 
his subject. Neither can it be supposed that he would 
be willing to rely on the simple ipse dixit of Chief 



34: THE FEDERAL GOVERNMENT : 

Justice Jay, unsupported by argument, unsustained 
by any reference to historical facts, and wholly indefi- 
nite in extent and bearing. "Why, then, was this 
passage written? As mere history, apart from its 
bearing on the Constitution of the United States, it is 
of no value in this work, and is wholly out of place. 
All doubts upon this subject will be removed in the 
progress of this examination. The great effort of 
Judge Story, throughout the entire work, is to estab- 
lish the doctrine, that the Constitution of the United 
States is a government of "the people of the United 
States," as contradistinguished from the people of the 
several States ; or, in other words, that it is a consoli- 
dated, and not a federative system. His construction 
of every contested federal power depends mainly upon 
this distinction ; and hence the necessity of establish- 
ing a oneness among the people of the several col- 
onies, prior to the Eevolution. It may well excite our 
surprise, that a proposition so necessary to the princi- 
pal design of the work, should be stated with so little 
precision, and dismissed with so little effort to sustain 
it by argument. One so well informed as Judge SLory, 
of the state of political opinions in this country, could 
scarcely have supposed that it would be received as an 
admitted truth, requiring no examination. It enters 
too deeply into grave questions of Constitutional law, 
to be so summarily disposed of. "We should not be 
content, therefore, with simply proving that Judge 
Story has assigned no sufficient reason for the opinion 
he has advanced. The subject demands of us the still 



ITS TRUE NATURE AND CHARACTER. 35 

farther proof that his opinion is, in fact, erroneous, 
and that it cannot be sustained by any other reasons. 

In order to constitute " one people," in a political 
sense, of the inhabitants of different countries, some- 
thing more is necessary than that they should owe a 
common allegiance to a common sovereign. Neither 
is it sufficient that, in some particulars, they are 
bound alike, by laws which that sovereign may pre- 
scribe ; nor does the question depend on geographical 
relations. The inhabitants of different islands may be 
one people, and those of contiguous countries may be, 
as we know they in fact are, different nations. By the 
term "people," as here used, we do not mean merely a 
number of persons. We mean by it a political corpo- 
ration, the members of which owe a common alle- 
giance to a common sovereignty, and do not owe any 
allegiance which is not common ; who are bound by no 
laws except such as that sovereignty may prescribe ; 
who owe to one another reciprocal obligations ; who 
possess common political interests ; who are liable to 
common political duties ; and who can exert no sov- 
ereign power except in the name of the whole. Any- 
thing short of this, would be an imperfect definition 
of that political corporation which we call " a people." 

Tested by this definition, the people of the American 
colonies were, in no conceivable sense, " one people." 
They owed, indeed, allegiance to the British King, as 
the head of each colonial government, and as forming 
a part thereof ; but this allegiance was exclusive, in 
each colony, to its own government, and, consequently, 



36 THE FEDERAL GOVERNMENT : 

to the King as the head thereof, and was not a com- 
mon allegiance of the peop 1 e of all the colonies, to a 
common head.* These colonial governments were 
clothed with the sovereign power of making laws, Lnd 
of enforcing obedience to them, from their own people. 
The people of one colony owed no allegiance to the 
government of any other colony, and were not bound 
by its laws. The colonies had no common legislature, 
no common treasury, no common military power, no 
common judicatory. The people of one colony were 
not liable to pay taxes to any other colony, nor to bear 
arms in its defence ; they had no right to vote in its 
elections ; no influence nor control in its municipal 
government ; no interest in its municipal institutions. 
There was no prescribed form by which the colonies 
could act together, for any purpose whatever ; they 
were not known as " one people " in any one function 
of government. Although they were all, alike, depen- 
dencies of the British Crown, yet, even in the action of 
the parent country, in regard to them, they were re- 
cognized as separate and distinct. They were estab- 
lished at different times, and each under an authority 
from the Crown, which applied to itself alone. They 
were not even alike in their organization. Some were 
provincial, some proprietary, and some charter govern- 



* The resolutions of Virginia, in 1765, show that she considered herself 
merely as an appendage of the British Crown ; that Tier legislature was 
alone authorized to tax her ; and that she had a right to call on 7ier King, 
who was the King of England, to protect her against the usurpations of the 
British Parliament. 



ITS TRUE NATURE AND CHARACTER. 37 

ments. Each derived its form of government from 
the particular instrument establishing it, or from as- 
sumptions of power acquiesced in by the Crown, with- 
out any connection with, or relation to, any other. 
They stood upon the same footing, in every respect, 
with other British colonies, with nothing to dis- 
tinguish their relation either to the parent country or 
to one another. k The charter of any one of them 
nrght have been destroyed, without in any manner 
affecting the rest. In point of fact, the charters of 
nearly all of them were altered, from time to time, and 
the whole character of their government changed. 
These changes were made in ^each colony for itself 
alone, sometimes by its own action, sometimes by the 
power and authority of the Crown ; but never by the 
joint agency of any other colony, and never with refer- 
ence to the wishes or demands of any other colony 
Thus they were separate and distinct in their crea- 
tion ; separate and distinct in the changes and modi- 
fications of their governments, which were made from 
time to time ; separate and distinct in political func- 
tions, in political rights, and in political duties. 

The provincial government of Virginia was the first 
established. The people of Virginia owed allegiance 
to the British King, as the head of their own local 
government. The authority of that government was 
confined within certain geographical limits, known as 
Virginia, and all who lived within those limits were 
"one people." When the colony of Plymouth wa$ 
subsequently settled, were the people of that colony 



38 THE FEDERAL GOVERNMENT : 

"one" with the people of Virginia? When, long 
afterwards, the proprietary government of Pennsyl- 
vania was established, were the followers of WiLiam 
Penn " one " with the people of Plymouth and Vir- 
ginia? If so, to which government was their alle- 
giance due ? Virginia had a government of her own, 
and Massachusetts a government of her own. The 
people of Pennsylvania could not be equally bound by 
the laws of all three governments, because those laws 
might happen to conflict ; they could not owe the 
duties of citizenship to all of them alike, because they 
might stand in hostile relations to one another. Either, 
then, the government of Virginia, which originally ex- 
tended over the whole territory, continued to be su- 
preme therein, (subject only to its dependence on tho 
British Crown,) or else its supremacy was yielded to 
the new government. Every one knows that this last 
was the case ; that within the territory of the new 
government the authority of that government alone 
prevailed. How then could the people of this new 
government of Pennsylvania be said to be " one " with 
the people of Virginia, when they were not citizens of 
Virginia, owed her no allegiance and no duty, and 
when their allegiance to another government might 
place them in the relation of enemies of Virginia ?* 



* At this time all the colonies were in the habit of calling England 
" home," and the " mother country," but no such language as " our sister 
colonies " was in vogue. There was little or no intercourse between the 
colonies. Their first intimate acquaintance with each other grew out of in- 
cidents connected with the old French war in 1756. Wben Mr. Quincy, of 



ITS TRUE NATURE AND CHARACTER. 89 

In farther illustration of tins point, let us suppose 
that some one of the colonies had refused to unite in 
the Declaration of Independence, what relation would 
it then have held to the others ? Not having disclaim- 
ed its allegiance to the British Crown, it would still 
have continued to be a British colony, subject to the 
authority of the parent country, in all respects ss be- 
fore. Could the other colonies have rightfully com- 
pelled it to unite with them in their revolutionary pur- 
poses, on the ground that it was part and parcel of the 
" one people," known as the people of the colonies ? 
No such right was ever claimed, or dreamed of, and it 
will scarcely be contended for now, in the face of the 
known history of the time. Such recusant colony would 
have stood precisely as did the Canadas, and every 
other part of the British empire. The colonies, which 
had declared war, would have considered its people as 
enemies, but would not have had a right to treat them 
as traitors, or as disobedient citizens resisting their 
authority. To what purpose, then, were the people of 
the colonies " one people," if, in a case so important to 
the common welfare, there was no right in all the people 



Boston, visited Charleston, S. C, 1773, he spoke of that colony as, " this dis- 
tant shore." When the first Congress assembled in 1774, the members all 
met as " strangers." And they came together with no design to amalga- 
mate, or to blend their separate and, as to each other, independent sov- 
ereignties, but simply to combine against a common foe. They no more 
proposed to blend their separate sovereignties than a community of gentle- 
men propose to make common stock of all their property when they com- 
bine to take means to detect and punish burglars and horse-thieves.— 
[C. C. B. 



40 THE FEDEKAL GOVERNMENT ! 

together, to coerce the members of their own cominu- 
nity to the performance of a common duty ? 

It is thus apparent that the people of the colonies 
were not "one people," as to any purpose involving 
allegiance on the one hand, or protection on the other. 
"What, then, I again ask, are the " many purposes " to 
which Judge Story alludes ? It is certainly incumbent 
on him who asserts this identity, against the inferences 
most naturally deducible from the historical facts, to 
show at what time, by what process, and for what pur- 
poses, it was effected. He claims too much considera- 
tion for his personal authority, when he requires his 
readers to reject the plain information of history, in 
favor of his bare assertion. The charters of the colo- 
nies prove no identity between them, but the reverse ; 
and it has already been shown that this identity is not 
the necessary result of their common relation to the 
mother country. By what other means they came to 
be "one," in any intelligible and political sense, it re- 
mains for Judge Story to explain. 

If these views of the subject be not convincing, 
Judge Story himself has furnished proof, in all need- 
ful abundance, of the incorrectness of his own conclu- 
sion. He tells us that, " though the colonies had a 
common origin, and owed a common allegiance, and 
the inhabitants of each were British subjects, they had 
no direct political connection with each other. Each was 
independent of all the others ; each, in a limited 
sense, was sovereign within its own territory. There 
was neither alliance nor confederacy between them. 



ITS TRUE NATURE AND CHARACTER. 41 

The assembly of one province could not make laws for 
another, nor confer privileges which were to be enjoyed 
or exercised in another, farther than they could be in 
any independent foreign States. They were known 
only as dependencies, and they followed the fate of the 
parent country, both in peace and war, without having 
assigned to them, in the intercourse or diplomacy of 
nations, any distinct or independent existence. TJiey 
did not possess the power of forming any league or treaty 
among themselves, which would acquire an obligatory 
force, without the assent of the parent State. And though 
their mutual wants and necessities often induced them 
to associate for common purposes of defense, these 
confederacies were of a casual and temporary nature, 
and were allowed as an indulgence, rather than as a 
right. They made several efforts to procure the es- 
tablishment of some general superintending govern- 
ment over them all ; but their own difference of opin- 
ion, as well as the jealousy of the Crown, made these 
efforts abortive." 

The English language affords no terms stronger 
than those which are here used to convey the idea of 
separateness, distinctness, and independence, among 
the colonies. No commentary could make the descrip- 
tion plainer, or more full and complete. The unity, 
contended for by Judge Story, nowhere appears, but is 
distinctly disaffirmed in every sentence. The colonies 
were not only distinct in their creation, and in the 
powers and faculties of their governments, but there 
was not even "an alliance or confederacy between 



42 THE FEDERAL GOVERNMENT : 

them." They had " no general superintending govern- 
ment over them all," and tried in vain to establish one. 
Each was " independent of all the others," having its 
own legislature, and without power to confer either 
right or privilege beyond its own territory. " Each, 
in a limited sense, was sovereign within its own terri- 
tory ;" and to sum up all, in a single sentence, " they 
had no direct political connection with each other !" 
The condition of the colonies was, indeed, anomalous, 
if Judge Story's view of it be correct. They present- 
ed the singular spectacle of " one people," or political 
corporation, the members of which had "no direct 
political connection with each other," and who had not 
the power to form such connection, even " by league 
or treaty among themselves." 

This brief review will, it is believed, be sufficient to 
convince the reader that Judge Story has greatly mis- 
taken the real condition and relation of the colonies, 
in supposing that they formed " one people," in any 
sense, or for any purpose whatever. He is entitled to 
credit, however, for the candor with which he has 
stated the historical facts. Apart from all other 
sources of information, his book affords to every 
reader abundant materials for the formation of his 
own opinion, and for enabling him to decide satisfac- 
torily whether Judge Story's inferences from the facts, 
which he himself has stated, be warranted by them or 
not 



ITS TRUE NATURE AND CHARACTER. 43 



CHAPTEE III. 

RELATION OF THE COLONIES TO EACH OTHER DURING THE 
REVOLUTION — THEY WERE NOT THEN ONE PEOPLE. 

In the execution of tlie second division of his plan, 
very little was required of Judge Story, either as a 
historian or a commentator. Accordingly, he has 
alluded but slightly to the condition of the colonies 
during the existence of the revolutionary government, 
and has sketched with great rapidity, yet sufficiently 
in detail, the rise, decline and fall of the Confedera- 
tion. Even here, however, he has fallen into some 
errors, and has ventured to express decisive and im- 
portant opinions, without due warrant. The desire to 
make " the people of the United States " one consoli- 
dated nation is so strong and predominant, that it 
breaks forth, often uncalled for, in every part of his 
work. He tells us that the first Congress of the Eevo- 
lution was " a general or a national government ;" 
that it " was organized under the auspices and with 
the consent of the people, acting directly in their pri- 
mary, sovereign capacity," and without the interven- 
tion of the functionaries to whom the ordinary powers 
of government were delegated in the colonies. He 
acknowledges that the powers of this Congress were 



44 THE FEDERAL GOVERNMENT : 

but ill-defined ; that many of tliem were exercised by 
mere usurpation, and were acquiesced in by the peo- 
ple, only from the confidence reposed in the wisdom 
and patriotism of its members, and because there was 
no proper opportunity, during the presence of the 
war, to raise nice questions of the powers of govern- 
ment. And yet he infers, from the exercise of powers 
thus ill-defined, and, in great part, usurped, that 
"from the moment of the Declaration of Independ- 
ence, if not for most purposes at an antecedent period, 
the united colonies must be considered as being a 
nation de facto" &c. 

A very slight attention to the history of the times 
will place this subject in its true light. The colonies 
complained of oppressions from the mother country, 
and were anxious to devise some means by which their 
grievances might be redressed. These grievances 
were common to all of them ; for England made no 
discrimination between them in the general course of 
her colonial policy. Their rights, as British subjects, 
had never been well defined ; and some of the most 
important of these rights, as asserted by themselves, 
had been denied by the British Crown. As early as 
1765 a majority of the colonies had met together in 
congress, or convention, in New York, for the purpose 
of deliberating on these grave matters of common con- 
cern ; and they then made a formal declaration of 
what they considered their rights, as colonists and 
British subjects. This measure, however, led to no 
redress of their grievances. On the contrary, the sub- 



ITS TRUE NATURE AND CHARACTER. 45 

sequent measures of the British Government gave new 
and just causes of complaint ; so that, in 1774, it was 
deemed necessary that the colonies should again meet 
together, in order to consult upon their general condi- 
tion, and provide for the safety of their common 
rights. Hence the Congress which met at Carpenters' 
Hall, in Philadelphia, on the 5th of September, 1774. 
It consisted of delegates from New Hampshire, Massa- 
chusetts Bay, Khode Island and Providence Planta- 
tions, Connecticut from the city and county of New 
York, and other counties in the province of New York, 
New Jersey, Pennsylvania, New Castle, Kent, and Sus- 
sex in Delaware, Maryland, Virginia, and South Caro- 
lina. North Carolina was not represented until the 
14th September, and Georgia not at all. It is also ap- 
parent that New York was not represented as a colony, 
but only through certain portions of her people ;* in 
like manner, Lyman Hall was admitted to his seat, in 
the succeeding Congress, as a delegate from the parish 



* The historical fact here stated, is perfectly authenticated, and has never 
been disputed ; nevertheless, the following extracts from the Journals of 
Congress may not be out of place : 

" Wednesday, September 14, 1774. Henry Wisner, a delegate from the 
county of Orange, in the colony of New York, appeared at Congress, and 
produced a certificate of his election oy tlie said county, which being read 
and approved, he took his seat in Congress as a deputy from the colony of 
New York." 

"Monday, September 26, 1774. John Hening, Esq., a deputy from Orange 
cownty, in the colony of New York, appeared this morning, and took his 
seat as a deputy from that colony." 

"Saturday, October 1, 1774. Simon Bocrum, Esq., appeared in Congress 
as a deputy from King's county, in the colony of New York, and produced 



46 THE FEDERAL GOVERNMENT .* 

of St. John's, in Georgia, although he declined to vote 
on any question requiring a majority of the colonies to 
carry it, because he was not the representative of a 
colony. This Congress passed a variety of inrportant 
resolutions, between September, 1774, and the 22d 
October, in the same year ; during all which time 
Georgia was not represented at all ; for even the parish 
of St. John's did not appoint a representative till May, 
1775. In point of fact, the Congress was a deliberative 
and advisory body, and nothing more ; and, for this 
reason, it was not deemed important, or, at least, not 
indispensable, that all the colonies should be represent- 
ed, since the resolutions of Congress had no obliga- 
tory force whatever. It was appointed for the sole 
purpose of taking into consideration the general con- 
dition of the colonies, and of devising and recom- 
mending proper measures for the security of their 
rights and interests. For these objects no precise 
powers and instructions were necessary, and beyond 
them none were given. Neither does it appear that 
any precise time was assigned for the duration of 
Congress. The duty with which it was charged was 



the credentials of his election, which being read and approved, he took his 
seat as a delegate from that colony. " 

It is evident, from these extracts, that although the delegates from certain 
portions of the people of New York were admitted to seats in Congress as 
delegates from the colony, yet, in point of fact, they were not elected as 
such, neither were they ever recognized as such, by New York herself. The 
truth is, as will presently appear, the majority of her people were not ripe 
for the measures pursued by Congress, and would not have agreed to ap- 
point delegates for the whole colony. 



ITS TRUE NATURE AND CHARACTER. 47 

extremely simple ; and it was taken for granted that 
it would dissolve itself as soon as the duty should be 
performed.* 



* A reference to the credentials of the Congress of 1774 will show, beyond 
all doubt, tlie true character of that assembly. The following are extracts 
from them : 

New Hampshire. " To devise, consult and adopt such measures as may 
have the most likely tendency to extricate the colonies from their present 
difficulties ; to secure and perpetuate their rights, liberties, and privileges, 
and to restore that peace, harmony, and mutual confidence, which once 
happily subsisted between the parent country and her colonies." 

Massachusetts. " To consult on the present state of the colonies, and the 
miseries to which they are, and must be reduced, by the operation of cer- 
tain acts of Parliament respecting America ; and to deliberate and deter- 
mine upon wise and proper measures to be by tTuem recommended to all the 
colonies, for the recovery and establishment of their just rights and liber- 
ties, civil and religious, and the restoration of union and harmony between 
Great Britain and the colonies, most ardently desired by all good men." 

Rhode Island. " To consult on proper measures to obtain a repeal of the 
several acts of the British Parliament for levying tax on his Majesty's sub- 
jects in America without their consent, and upon proper measures to 
establish the rights and liberties of the colonies upon a just and solid 
foundation, agreeably to instructions given by the general assembly" 

Connecticut. " To consult and advise on proper measures for advancing 
the best good of the colonies, and such conference to report from time to 
time to the Colonial House of Representatives." 

New York. Only a few of her counties were represented, some by depu- 
ties authorized to " represent," and some by deputies authorized to " attend 
Congress." 

New Jersey. " To represent the colony in the General Congress." 

Pennsylvania. " To form and adopt a plan for the purposes of obtaining 
redress of American grievances, ascertaining American rights upon the 
most solid and constitutional principles, and for establishing that union and 
harmony between Great Britain and the colonies which is indispensably 
necessary to the welfare and happiness of both." 

Delaware. To consult and advise with the deputies from the other colo- 
nies, to determine upon all such prudent and lawful measures as may be 
judged most expedient for the colonies immediately and unitedly to adopt, 



48 THE FEDEKAL GOVERNMENT : 

It is perfectly apparent that the mere appointment 
of this Congress did not make the people of all the 
colonies "one people/' nor a " nation de facto" All 



in order to obtain relief for an oppressed people, (a) and the redress of our 
general grievances." 

Maryland. " To attend a general congress, to effect one general plan of 
conduct operating on the commercial connection of the colonies with the 
mother country, for the relief of Boston, and the preservation of American 
liberty." 

Virginia. " To consider of the most proper and effectual manner of so 
operating on the commercial connection of the colcnies with the mother 
country, as to procure redress for the much injured province of Massachu- 
setts Bay, to secure British America from the ravage and ruin of arbitrary 
taxes, and speedily to procure the return of that harmony and union, so 
beneficial to the whole empire, and so ardently desired by all British 
America." 

North Carolina. " To take such measures as they may deem prudent to 
effect the purpose of describing with certainty the rights of Americans, re- 
pairing the breach made in those rights, and for guarding them for the 
future against any such violations done under the sanction o f public au- 
thority." For these purposes the delegates are " invested with such powers 
as may make any acts done by them obligatory in honor, on every inhabit- 
ant hereof, who is not an alien to his country's good, and an apostate to the 
liberties of America." 

South Carolina. " To consider the acts lately passed, and bills depending 
in Parliament with regard to the port of Boston, and the colony of Massa- 
chusetts Bay ; which acts and bills, in the precedent and consequences, 
affect the whole Continent of America. Also the grievances under which 
America labors, by reason of the several acts of Parliament that impose 
taxes or duties for raising a revenue, and lay unnecessary restraints and 
burdens on trade ; and of the statutes, parliamentary acts, and royal in- 
structions, which make an invidious distinction between hi s Majesty's sub- 
jects in Great Britain and America, with full power and authority to con- 
cert, agree to and prosecute such legal measures, as in the opinion of the 

(a) Massachusetts, the particular wrongs of which are just before recited 
at large. 



ITS TRUE NATURE AND CHARACTER. 4:9 

the colonies did not unite in the appointment, neither 
as colonies nor by any portion of their people acting 
in their primary assemblies, as has already been 
shown. The colonies were not independent, and had 
not even resolved to declare themselves so at any 
future time. On the contrary, they were extremely 



said deputies, so to be assembled, shall be most likely to obtain a repeal of 
the said acts, and a redress of those grievances. 

[The above extracts are made from the credentials of the deputies of the 
several colonies, as spread upon the Journal of Congress, according to a 
copy of that bound (as appears by a gilt label on the back hereof) for the 
President of Congress— now in possession of B. Tucker, Esq.] 

It is perfectly clear from these extracts, 1. That the colonies did not con- 
sider themselves as " one people," and that they were therefore bound to 
consider the quarrel of Boston as their own ; but that they made common 
cause with Massachusetts, only because the principles asserted in regaid to 
her, equally affected the other colonies ; 2. That each colony appointed its 
own delegates, giving them precisely such power and authority as suited its 
own views ; 3. That no colony gave any power or authority, except for ad- 
visement only ; 4. That so far from designing to establish " a general or na 
tional government," and to form themselves into ■• a nation de facto," their 
great purpose was to bring about a reconciliation and harmony with the 
mother country. This is still farther apparent from the tone of the public 
addresses of Congress. 5. That this Congress was not "organized under 
the auspices and with the consent of the people, acting directly in their 
primary, sovereign capacity, and without the intervention of the function- 
aries to whom the ordinary powers of government were delegated in the 
colonies," but, on the contrary, that it was organized by the colonies as 
such, and generally through their ordinary legislatures ; and always with 
careful regard to their separate and independent rights and powers. 

If the Congress of 1774 was " a general or national government," neither 
New York nor Georgia was party to it ; ^for neither of them was represented 
in that Congress. It is also worthy of remark that the Congress of 1774 had 
no agents of its own in foreign countries, but employed those of the several 
colonies. See the resolutions for delivering the address to the King 

passed October 25, 1774, and the letter to the agents, approved on the fol- 

owing day. 



50 THE FEDERAL GOVERNMENT : 

desirous to preserve and continue their connection 
with the parent country, and Congress was charged 
with the duty of devising such measures as would 
enable them to co so, without involving a surrender of 
their rights as British subjects. It is equally clear 
that the powers, with which Congress was clothed, did 
not flow from, nor constitute "one people," or "nation 
de facto " and that that body was not " a general or 
national government," nor a government of any kind 
whatever. The existence of such government was abso- 
lutely inconsistent with the allegiance which the colo- 
nies still acknowledged to the British Crown. Judge 
Story himself informs us, in a passage already quoted, 
that they had no power to form such government, nor 
to enter into "any league or treaty among them- 
selves." Indeed, Congress did not claim any legisla- 
tive power whatever, nor could it have done so con- 
sistently with the political relations which the colonies 
still acknowledged and desired to preserve. Its acts 
were in the form of resolutions, and not in the form of 
laws ; it recommended to its constituents whatever it 
believed to be for their advantage, but it commanded 
nothing. Each colony, and the people thereof, were 
at perfect liberty to act upon such recommendation or 
not, as they might think proper.* 



* The journals of Congress afford the most abundant and conclusive 
proofs of this. In order to show the general character of their proceedings, 
it is enough for me to refer to ( he following : 

On the 11 th October, 1774, it was "Resolved unanimously, That a memo- 
rial be prepared to the people of British America, stating to them the neces- 



ITS TRUE NATURE AND CHARACTER. 51 

On the 22d October, 1774, this Congress dissolved 
itself, having recommended to the several colonies to 
appoint delegates to another Congress, to be held in 
Phradelphia in the following May. Accordingly dele- 
gates were chosen, as they had been chosen to the pre- 
ceding Congress, each colony and the people thereof 
acting for themselves, and by themselves ; and the 



sityof a fiim, united and invariable observation of the measures recom- 
mended by the Congress, as they tender the invaluable rights and liberties 
derived to them from the laws and Constitution of their country." The 
memorial was accordingly prepared, in conformity with the resolution. 

Congress having previously had under consideration the plau of an asso- 
ciation for establishing non-importation, &c, finally adopted it, October 20, 
1774. After reciting their grievances, tliey say : " And, therefore, for our- 
selves and the inhabitants of the several colonies whom we represent, firm'y 
ag- ee and associate, under the sacied ties of virtue, honor and love of our 
country, as follows." They then proceed to recommend a certain course of 
proceeding, such as non-impoitalion and non-consumption of certain British 
productions ; they recommended the appointment of a committee in every 
county, city and town, to watch their fellow-citizens, in order to ascertain 
whether or not " any person within the limits of their appointment has vio- 
lated this association :" and if they should find any such, it is their duty to 
report them, " to the end, that all such foes to the rights of British America 
may be publicly known, and universally contemned as the enemies of 
Ameiican libeity ; and, thenceforth, we respectively will break off all deal- 
ings with him or her." They also resolve, that they will "have no trade, 
commerce, dealings or intercom se whatsoever, with any colony or province 
in Xoith America, which shall not accede to, or which shall hereafter violate 
this association, but will hold them as unworthy of the rights of freemen, 
and as inimical to the liberties of their country." 

This looks very little like the legislation of the "general or national gov- 
ernment " of a " nation tie faclo." The most important measures of gen- 
eral concern are rested upon no stronger foundation than " the sacred ties 
of virtue, honor, and the love of our country," and have no rrgher sanction 
than public contempt and exclusion from the o: dina y intercourse of 
society. 



52 THE FEDERAL GOVERNMENT .* 

delegates thus chosen were clothed with substantially 
the same powers, for precisely the same objects, as in 
the former Congress. Indeed, it could not have been 
otherwise ; for the relations of the colonies were still 
unchanged, and any measure establishing " a general 
or national government," or uniting the colonies so as 
to constitute them " a nation de facto/* would have 
been an act of open rebellion, and would have severed 
at once all the ties which bound them to the mother 
country, and which they were still anxious to preserve. 
New York was represented in this Congress precisely 
as she had been in the former one, that is, by dele- 
gates chosen by a part of her people ; for the royal 
party was so strong in that colony, that it would have 
been impossible to obtain from the legislature an ex- 
pression of approbation of any measure of resistance 
to British authority. The accession of Georgia to the 
general association was not made known till the 20th 
of July, and her delegates did not take their seats till 
the 13th of September. In the meantime Congress 
had proceeded in the discharge of its duties, and some 
of its most important acts, and among the rest the 
appointment of a commander-in-chief of their armies, 
were performed while these two colonies were unrepre- 
sented. Its acts, like those of the former Congress, 
were in the form of resolution and recommendation ; 
for as it still held out the hope of reconciliation with 
the parent country, it did not venture to assume the 
function of authoritative legislation. It continued to 
hold this attitude and to act in this mode till the 4th 



ITS TKUE NATUKE AND CHARACTER. 53 

of July, 1776, when it declared that the colonies there 
represented (including New York, wrr.ch had acceded 
after the Battle of Lexington,) were, and of right 
ought to be, free and independent States.* 



* That tlie powers granted to tbe delegates to the second Congress were 
substantially the same with those granted to the delegates to the first, will 
appear from the following extracts from then- credentials : 

New Hampshire. " To consent and agree to all measures, which said 
Congress shall deem necessary to obtain redress of American grievances." 
Delegates appointed by a Convention. 

Massachusetts. " To concert, agree upon, direct and order " (in concert 
with the delegates of the other colonies) " such further measures as to them 
shall appear to be the best calculated for tbe recovery and establishment of 
American rights and liberties, and for restoring harmony between Great 
Britain and the colonies n Delegates appointed by Provincial Congress. 

Connecticut. " To join, consult and advise with the other colonies in 
British America, on proper measures for advancing the best good of the 
colonies." Delegates appointed by the Colonial House of Representatives. 

The colony of New York was not represented in this Congress, but dele- 
gates were appointed by a convention of deputies from the city and county 
of New York, the city and county of Albany, and the counties of Dutchess 
Ulster, Orange, Westchester, Kings and Suffolk. They gave their delegates 
power to " concert and determine upon such measures as shall be judged 
most effectual for the preservation and re-establishment of American rights 
and privileges, and for the restoration of harmony between Great Britain 
gnd the colonies." Queen's County approved of the proceeding. 

Pennsylvania. Simply to " attend the general Congress." Delegates ap - 
pointed by Provincial Assembly. 

New Jersey. " To attend the Continental Congress, and to report their 
proceedings at the next session of the General Assembly." Delegates ap- 
pointed by the Colonial Assembly. 

Delaware. "To concert and agree upon such further measures, as shall 
appear to them best calculated for the accommodation of the unhappy dif- 
ferences between Great Britain and the colonies on a constitutional founda- 
tion, which the House most ardently wish for, and that they report their 
proceedings to the next session of General Assembly." Delegates appoint- 
ed by the Assembly. 

Maryland "To consent and agree to all measuies, which said Congress 



54 THE FEDERAL GOVERNMENT : 

It is to be remarked, that no new powers were con- 
ferred on Congress after the Declaration of Independ- 
ence. Strictly speaking, they had no authority to 
make that Declaration. They were not appointed for 



shall deem necessary and effectual to obtain a redress of American griev- 
ances ; and this province bind themselves to execute to the utmost of their 
power, all resolutions which the said Congress may adopt." Delegates ap- 
pointed by Convention, and subsequently approved by the General As- 
sembly- 
Virginia. " To represent the colony in general Congress, to be held, &c." 
Delegates appointed by Convention. 

North Carolina. " Such powers as may make any acts done by them, or 
any of them, or consent given in behalf of this province, obligatory in 
honor upon every inhabitant thereof." Delegates appointed by Convention 
and approved in General Assembly. 

South Carolina. " To concert, agree to, and effectually prosecute such 
measures, as in the opinion of the said deputies, and the deputies to be as- 
sembled, shall be most likely to obtain a redress of American grievances." 
Delegates appointed by Provincial Congress. 

In the copy of the Journals of Congress now before me, I do not find the 
credentials of the delegates from Rhode Island. They did not attend at the 
first meeting of Congress, although they did at the subsequent period. 
Georgia was not represented in this Congress until September, 1775. On 
the 13th May, 1775, Lyman Hall appeared as a delegate from the parish of 
St. Johns, and he was admitted to his seat, " subject to such regulations as 
the Congress shall determine, relative to his voting." He was never regard- 
ed as the representative of Georgia, nor was that colony then considered as 
a party to the proceedings of Congress. This is evident from the fact that, 
in the address to the inhabitants of Great Britain, they use the style, " The 
twelve United Colonies, by their delegates in Congress, to the inhabitants of 
Great Britain," adopted on the Sth July, 1775. On the 20th of that month 
Congress were notified that a convention of Georgia had appointed dele- 
gates to attend them, but none of them took their seats till the 13th Septem- 
ber following. They were authorized " to do, transact, join and concur 
with the several delegates from the other colonies and provinces upon the. 
Continent, on all such matters and things as shall appear eligible and fit, at 
this alarming time, for the preservation and defence of our rights and liber- 



ITS TRUE NATURE AND CHARACTER. 55 

any such purpose, but precisely the reverse ; and 
although some of them were expressly authorized to 
agree to it, yet others were not. Indeed, we ar e in- 
formed by Mr. Jefferson, that the Declaration was op- 
posed by some of the firmest patriots of the body, and 
among the rest, by E. K. Livingston, Dickenson, "Wil- 
son, and E. Kutlege, on the ground that it was prema- 
ture ; that the pople of New York, New Jersey, Mary- 
land and Delaware were not yet ripe for it, but would 
soon unite with the rest, if not indiscreetly urged. In 
entering upon so bold a step, Congress acted precisely 
as they did in all other cases, in the name of the States 
whose representatives they were, and with a full reli- 
ance that those States would confirm whatever they 
might do for the general good. They were, strictly, 
agents or ministers of independent States, acting each 
under the authority and instructions of his own State, 
and having no power whatever, except what these in- 
structions conferred. The States themselves were not 
bound by the resolves of Congress, except so far as 
they respectively authorized their own delegates to 
bind them. There was no original grant of powers to 
that body, except for deliberation and advisement ; 
there was no constitution, no law, no agreement, to 



ties, and for the restorationof harmony, upon constitutional principles, be- 
tween Great Britain and America. " 

Some of the colonies appointed their delegates only for limited times, at 
the expiration of which they were replaced by others, but without any ma- 
terial change in their powers. The delegates were, in all things, subject to 
the oiders of their respective colonies. 



56 THE FEDERAL GOVERNMENT I 

"which they could refer, in order to ascertain the extent 
of their powers. The members did not all act under 
the same instructions, nor with the same extent of 
authority. The different States gave different instruc- 
tions, each according to its own views of right and 
policy, and without reference to any general scheme to 
which they were all bound to conform. Congress had 
in fact no power of government at all, nor had it that 
character of permanency which is implied in the idea 
of government. It could not pass an obligatory law, 
nor devise an obligatory sanction, by virtue of any in- 
herent power in itself. It was, as already remarked, 
precisely the same body after the Declaration of Inde- 
pendence as before. As it was not then a government, 
and could not establish any new or valid relations 
between the colonies, so long as they acknowledged 
themselves dependencies of the British Crown, they 
certainly could not do so after the Declaration of In- 
dependence, without some new grant of power. The 
dependent colonies had then become independent 
States ; their political condition and relations were 
necessarily changed by that circumstance ; the de- 
liberative and advisory body, through whom they had 
consulted together as colonies, was functus officio ; the 
authority which appointed them had ceased to exist, or 
was suspended by a higher authority. Everything 
which they did, after this period and before the Arti- 
cles of Confederation, was without any other right or 
authority than w^hat was derived from the mere con- 
sent and acquiescence of the several States. In the 



ITS TRUE NATURE AND CHARACTER. 57 

ordinary business of that government de facto, which 
the occasion had called into existence, they did what- 
ever the public interest seemed to require, upon the 
secure reliance that their ac f s would be approved and 
confirmed. In other cases, however, they called for 
specific grants of power ; and in such cases, each 
representative applied to his own State alone, and not 
to any other State or people. Indeed, as they were 
called into existence by the colonies in 1775, and as 
they continued in existence, without any new election 
or new grant of power, it is difficult to perceive how 
they could form a " general or national government, 
organized by the people." They were elected by sub- 
jects of the King of England ; subjects who had no 
right, as they themselves admitted, to establish any 
government whatever ; and when those subjects be- 
came citizens of independent States, they gave no in- 
structions to establish any such government. The 
government ex rcised was, as already remarked, merely 
a government de facto, and no farther de jure than the 
subsequent approval of its acts by the several States 
made it so. 

This brief review will enable us to determine how 
far Judge Story is supported in the inferences he has 
drawn, in the passages last quoted. "We have reason 
to regret that in these, as in many others, he has not 
been sufficiently specific, either in slating his proposi- 
tion or in citing his proof. To what people does he 
allude, when he tells us that the " first general or na- 
tional government " was organized " by the people ?" 



58 THE FEDERAL GOVERNMENT : 

The first and every recommendation to send deputies 
to a general Congress was .addressed to the colonies as 
such; in the choice of those deputies each colony- 
acted for itself, without mingling in any way with the 
people or government of any other colony ; and when 
the deputies met in Congress, they voted on all ques- 
tions of public and general concern by colonies, each 
colony having one vote, whatever was its population or 
number of deputies. If, then, this government was 
organized by " the people " at all, it was clearly the 
people of the several colonies, and not the joint people 
of all the colonies. And where is Judge Story's war- 
rant for the assertion, that they acted " directly in 
their primary sovereign capacity, and without the in- 
tervention of the functionaries, to whom the ordinary 
powers of government were delegated in the colonies ?'> 
He is in most respects a close follower of Marshall, 
and he could scarcely have failed to see the following 
passage, which is found in a note in the 168th page of 
the second volume of the Life of Washington. Speak- 
ing of the Congress of 1774, Marshall says : " The 
members of this Congress were generally elected by 
the authority of the colonial legislatures, but in some 
instances a different system had been pursued. In 
New Jersey and Maryland the elections were made by 
committees chosen in the several counties for that par- 
ticular purpose ; and in New York, where the royal 
party was very strong, and where it is probable that 
no legislative act, authorizing an election of members 
to represent that colony in Congress, could have been 



ITS TRUE NATURE AND CHARACTER. 59 

obtained, the people themselves assembled in those 
places, where the spirit of opposition to the claims of 
Parliament prevailed, and elected deputies, who were 
very readily received into Congress," Here the general 
rule is stated to be, that the deputies were elected by 
the " colonial legislatures," and the instances in which 
the people acted " directly in their primary, sovereign 
capacity, without the intervention of the ordinary 
functionaries of government," are given as exceptions. 
And even in those cases, in which delegates were ap- 
pointed by conventions of the people, it was deemed 
necessary in many instances, as we have already seen, 
that the appointment should be approved and con- 
firmed by the ordinary legislature. As to New York, 
neither her people nor her government had so far lost 
their attachment to the mother country as to concur 
in any measure of opposition until after the battle of 
Lexington in April, 1775 ; and the only representa- 
tives which New York had in the Congress of 1774 
were those of a comparatively small portion of her 
people. It is well known — and, indeed, Judge Story 
himself so informs us — that the members of the Con- 
gress of 1775 were elected substantially as were those 
of the preceding Congress ; so that there were very 
few of the colonies, in which the people performed 
that act in their " primary, sovereign capacity," with- 
out the intervention of their constituted authorities. 
It is of little consequence, however, to the present in- 
quiry, whether the deputies were chosen by the colo- 
nial legislatures, as was done in most of the colonies, 



60 THE FEDERAL GOVERNMENT : 

or by conventions, as was done in Georgia and some 
others, or by committees appointed for the purpose, as 
was done in one or two instances, or by the peojDle in 
primary assemblies, as was done in part of Xew York. 
All these modes were resorted to, according as the one 
or the other appeared most convenient or proper 
in each particular case. But, whichever mode was 
adopted, the members were chosen by each colony in 
and for itself, and were the representatives of that 
colony alone, and not of any other colony, or any na- 
tion de facto or de jure. The assertion, therefore, that 
" the Congress thus assembled exercised de facto and 
de jure a sovereign authority, not as the delegated 
agents of the government de facto of the colonies, but 
in virtue of the original powers derived from the peo- 
ple," is, to say the least of it, very bold, in one who had 
undoubtedly explored all the sources of information 
upon the subject. Until the adoption of the Articles 
of Confederation, Congress had no " original powers," 
except only for deliberation and advisement, and 
claimed no " sovereign authority " whatever. It was 
an occasional, and not a permanent body, or one re- 
newable from time to time. Although they did, in 
many instances, " exercise de facto " a power of legis- 
lation to a certain extent, yet they never held that 
power " de jure" by any grant from the colonies or 
the people ; and the acts became valid only by subse- 
quent confirmation of them, and not because they had 
any delegated authority to perform them. The whole 
history of the period proves this, and not a single in- 



ITS TRUE NATURE AND CHARACTER. Gl 

stance can be cited to the contrary. The course of 
the revolutionary government throughout attests the 
fact, that, however the people may have occasionally 
acted, in pressing emergencies, without the interven- 
tion of the authorities of their respective colonial gov- 
ernments, they never lost sight of the fact that they 
were citizens of separate colonies, and never, even im- 
pliedly, surrendered that character, or acknowledged 
a different allegiance. In all the acts of Congress*, ref- 
erence was had to the colonies, and never to the peo- 
ple. That body had no power to act directly upon 
the people, and could not execute its own resolves as 
to most purposes, except by the aid and intervention 
of the colonial authorities. Its measures wer6 adopt- 
ed by the votes of the colonies as such, and not by the 
rule of mere numerical majority, which prevails in 
every legislative assembly of an entire nation. This 
fact alone is decisive to prove, that the members were 
not the representatives of the people of all the colo- 
nies, for the judgment of each colony was pronounced 
by its own members only, and no others had any right 
to mingle in their deliberations. What, then, was 
this " sovereign authority ?" "What was the nature, 
what the extent of its " original powers ?" From what 
1 ■ people " were these powers derived ? I look in vain 
for answers to these questions to any historical record 
which has yet met my view, and have only to regret 
that Judge Story has not directed me to better guides. 



G2 THE FEDERAL GOVERNMENT ! 



CHAPTEE IV. 

THE NATURE AND EXTENT OF POWERS EXERCISED BY THE 
REVOLUTIONARY GOVERNMENT DID NOT MAKE THE COLO- 
NIES ONE PEOPLE. 

Judge Story's conclusion is not better sustained by 
the nature and extent of the powers exercised by the 
revolutionary government. It has already been stated, 
that no original powers of legislation were granted to 
the Congresses of 1774 and 1775 ; and it is only from 
their acts that we can determine what powers they ac- 
tually exercised. The circumstances under which they 
were called into existence precluded the possibility of 
any precise limitations of their powers, even if it had 
been designed to clothe them with the functions of 
government. The colonies were suffering under com- 
mon oppressions, and were threatened with common 
dangers, from the mother country. The great object 
which they had in view was to produce that concert of 
action among themselves which would best enable 
them to resist their common enemy, and best secure 
the safety and liberties of all. Great confidence must 
necessarily be reposed in public rulers under circum- 
stances of this sort. We may well suppose, therefore, 
that the revolutionary government exercised every 



ITS TRUE NATURE AND CHARACTER. 63 

power which appeared to be necessary for the success- 
ful prosecution of the great contest in which they 
were engaged ; and we may, with equal propriety, 
suppose that neither the people nor the colonial gov- 
ernments felt any disposition to scrutinize very nar- 
rowly any measure which promised protection and 
safety to themselves. They knew that the government 
was temporary only ; that it was permitted only for a 
particular and temporary object, and that they could 
at any time recall any and every power which it had 
assumed. It would be a violent and forced inference, 
from the powers of such an agency, (for it was not a 
government, although I have sometimes, for con- 
venience, called it so,) however great they might be, 
to say that the people, or States, which established it, 
meant thereby to merge their distinctive character, to 
surrender all the rights and privileges which belong- 
ed to them as separate communities, and to consoli- 
date themselves into one nation. 

In point of fact, however, there was nothing in the 
powers, exercised by the revolutionary government, so 
far as they can be known from their acts, inconsistent 
with the perfect sovereignty and independence of the 
States. These were always admitted in terms, and 
* were never denied in practice. So far as external re- 
lations were concerned, Congress seems to have exer- 
cised every power of a supreme government. They 
assumed the right to " declare war and to make 
peace ; to authorize captures ; to institute appellate 
prize courts ; to direct and control all national mili- 



64 THE FEDERAL GOVERNMENT : 

tary and naval operations ; to form alliances and make 
treaties ; to contract debts and issue bills of credit on 
national account." These powers were not "exclu- 
sive," however, as our author supposes. On the con- 
trary, troops were raised, vessels of war were com- 
missioned, and various military ojDerations were con- 
ducted by the colonies, on their own separate means 
and authority. Ticonderoga was taken by the troops 
of Connecticut before the Declaration of Independ- 
ence ; Massachusetts and Connecticut fitted out 
armed vessels to cruise against those of England, in 
October, 1775 ; South Carolina soon followed their 
example. In 1776, New Hampshire authorized her 
executive to issue letters of marque and reprisal. 

These instances are selected out of many, as suffi- 
cient to show that in the conduct of the war Congress 
possessed no " exclusive " power, and the colonies (or 
States) retained, and actually asserted, their own 
sovereign right and power as to that matter. And 
not as to that matter alone, for New Hampshire estab- 
lished post offices. The words of our author may, in- 
deed, import that the power of Congress over the 
subject of war was " exclusive " only as to such mili- 
tary and naval operations as he considers national, 
that is, such as were undertaken by the joint power of 
all the colonies ; and, if so, he is correct. But the 
comma after the word " national " suggests a different 
interpretation. At all events, the facts which I have 
mentioned prove that Congress exercised no power 



ITS TRUE NATURE AND CHARACTER. 65 

which was considered as abridging the absolute sov- 
ereignty and independence of the States. 

Many of those powers which, for greater con- 
venience, were entrusted exclusively to Congress, 
could not be effectually exerted except by the aid of 
the State authorities. The troops required by Con- 
gress were raised by the States, and the commissions 
of their officers were countersigned by the Governors 
of the States. Congress were allowed to issue bills of 
credit, but they could not make them a legal tender, 
nor punish the counterfeiter of them. Neither could 
they bind the States to redeem them, nor raise by their 
own authority the necessary funds for the purpose. 
Congress received ambassadors and other public min- 
isters, yet they had no power to extend to them that 
protection which they receive from the government of 
every foreign nation. A man by the name of De Long- 
champs entered the house of the French Minister 
Plenipotentiary in Philadelphia, and there threatened 
violence to the person of Francis Barbe Marboise, 
Secretary of the French Legation, Consul General of 
France, and Consul for the State of Pennsylvania ; he 
afterwards assaulted and beat him in the public street. 
For this offence, he was indicted and tried in the Court 
of Oyer and Terminer of Philadelphia, and punished 
under its sentence. The case turned chiefly upon the 
law of nations, with reference to the protection which 
it affords to foreign mhrsters. A question was made, 
whether the authorities of Pennsylvania should not de- 
liver up De Longchamps to the French Government, 



66 THE FEDERAL GOVERNMENT : 

to be dealt with at their pleasure. It does not appear 
that the Federal Government was considered to 
possess any power over the subject, or that it was 
deemed proper to invoke its counsel or authority in 
any form. This case occurred in 1784, after the adop- 
tion of the Articles of Confederation ; but if the pow- 
ers of the Federal Government were less under those 
articles than before, it only proves that, however great 
its previous powers may have been, they were held at 
the will of the States, and were actually recalled by 
the Articles of Confederation. Thus it appears that, 
in the important functions of raising an army, of pro- 
viding a public revenue, of paying public debts, and 
giving security to the persons of foreign ministers, the 
boasted " sovereignty " of the Federal Government 
was merely nominal, and owed its entire efficiency to 
the co-operation and aid of the State governments. 
Congress had no power to coerce these governments ; 
nor could it exercise any direct authority over their in- 
dividual citizens. 

Although the powers actually assumed and exercised 
by Congress were certainly very great, they were not 
always acquiesced in, or allowed, by the States. Thus, 
the power to lay an embargo was earnestly desired by 
them, but was denied by the States. And in order the 
more clearly to indicate that many of their powers 
were exercised merely by sufferance, and at the same 
time to lend a sanction to their authority so far as they 
chose to allow it, it was deemed necessary, by at least 



ITS TRUE NATURE AND CHARACTER. 67 

one of the States, to pass laws indemnifying those who 
might act in obedience to the resolutions of that 
body.* 

A conclusive proof, however, of the true relation 
which the colonies held to the revolutionary govern- 
ment, even in the opinion of Congress itself, is furnish- 
ed by their own journals. In June, 1776, that body 
recommended the passing of laws for the punishment 
of treason ; and they declare that the crime shall be 
considered as committed against the colonies individu- 
ally, and not against them all, as united or confeder- 
ated together. This could scarcely have been so, if 
they had considered themselves " a government de 
facto and dejure" clothed with " sovereign authority." 
The author, however, is not satisfied to rest his opin- 
ion upon historical facts ; he seeks also to fortify him- 
self by a judicial decision. He informs us that, " soon 
after the organization of the present government, the 
question [of the powers of the Continental Congress] 
was most elaborately discussed before the Supreme 
Court of the United States, in a case calling for an ex- 
position of the appellate jurisdiction of Congress in 
prize causes, before the ratification of the Confedera- 
tion. The result of that examination was, that Con- 
gress, before the Confederation, possessed, by the con- 
sent of the people of the United States, sovereign and 
supreme powers for national purposes ; and, among 
others, the supreme powers of peace and war, and, as 

* This was done by Pennsylvania.— [See 2 Dallas, Col. L. of Penn. 3. 



68 THE FEDERAL GOVERNMENT : 

an incident, the right of entertaining appeals in the 
last resort, in prize causes, even in opposition to State 
legislation. And that the actual powers exercised by 
Congress, in respect to national objects, furnished the 
best exposition of its constitutional authority, since 
they emanated from the people, and were acquiesced in 
by the people" 

There is in this passage great want of accuracy, and 
perhaps some want of candor. The author, as usual, 
neglects to cite the judicial decision to which he al- 
ludes, but it must be the case of Penhallow and others 
against Doane's administrators. (3 Dallas' Reports, 54.) 
Congress, in November, 1775, passed a resolution, re- 
commending to the several colonies to establish prize 
courts, with a right of appeal from their decisions to 
Congress. In 1776, New Hampshire accordingly passed 
a law upon the subject, by which an appeal to Con- 
gress was allowed in cases of capture by vessels in the 
service of the united colonies ; but where the capture 
was made by " a vessel in the service of the united 
colonies and of any particular colony or person to- 
gether," the appeal was allowed to the Superior Court 
of New Hampshire. The brigantine Susanna was cap- 
tured by a vessel owned and commanded by citizens of 
New Hampshire, and was duly condemned as prize by 
her own Court of Admiralty. An appeal was prayed 
to Congress and denied ; and thereupon an appeal to 
the Superior Court of New Hampshire was prayed and 
allowed. From the decision of this Court an appeal 
was taken to Congress, in the mode prescribed by 



ITS TRUE NATURE AND CHARACTER. 69 

their resolution, and the case was disposed of by the 
Court of Appeals, appointed by Congress to take cog- 
nizance of such cases. After the adoption of the 
present Constitution and the organization of the judi- 
ciary system under it, a libel was filed in the District 
Court of Nev Hampshire, to carry into effect the sen- 
tence of the Court of Appeals above mentioned. The 
cause being legally transferred to the Circuit Court, 
was decided there, and an appeal allowed to the Su- 
preme Court. That Court, in its decision, sustains the 
jurisdiction of the Court of Appeals established by 
Congress. Mr. Justice Patterson's opinion is founded 
mainly upon these grounds : That the powers actually 
exercised by Congress ought to be considered as legiti- 
mate, because they were such as the occasion absolute- 
ly required, and were approved and acquiesced in by 
" the people ;" that the authority ultimately and finally 
to decide on all matters and questions touching the 
law of nations, does reside and is vested in the sov- 
ereign supreme power of war and peace ; that this 
power was lodged in the Continental Congress by the 
consent and acquiescence of "the people ;" that the 
legality of all captures on the high seas must be de- 
termined by the law of nations ; that New Hampshire 
had committed herself upon this subject, by voting in 
favor of the exercise of the same power by Congress 
in the case of the brig Active ; and as the commission, 
under which the capture in the case under considera- 
tion was made, was issued by Congress, it resulted, of 
necessity, that the validity of all captures made by vir- 



70 THE FEDERAL GOVERNMENT .V 

tue of that commission, should be judged of by Con- 
gress, or its constituted authority, because " every one 
must be amenable to the authority under which he 
acts." It is evident that this opinion, while it sustains 
the authority of Congress in the particular case, does 
not prove its general supremacy, nor that the States 
had surrendered to it any part of their sovereignty 
and independence. On the contrary, it affirms that 
the " sovereign and supreme power of war and peace " 
was assumed by Congress, and that the exercise of it 
became legitimate, only because it was approved and 
acquiesced in ; and that thus legitimated, the appellate 
jurisdiction in prize cases followed as a necessary in- 
cident. All the powers, which Patterson contends for 
as exercised by Congress, may all be conceded, with- 
out in the slightest degree affecting the question be- 
fore us ; they were as consistent with the character of 
a federative, as with that of a consolidated govern- 
ment. He does not tell us to what people he alludes, 
when he says the powers exercised by Congress were 
approved and ratified by " the people." He does not, 
in any part of his opinion, authorize the idea of the 
author, that " Congress possessed, before the Con- 
federation, by the consent of the people of the United 
Stat s, sovereign and supreme powers for national pur- 
poses." On the contrary, as to one of these powers, 
he holds the opposite language ; and, therefore, it is 
fair to presume, that he intended to be so understood 
in regard to all the rest. This is his language : " The 
authority exercised by Congress, in granting commis- 



ITS TRUE NATURE AND CHARACTER. 71 

sions to privateers, was approved and ratified by the 
several colonies or States, because they received and 
filled up the commissions and bonds, and returned the 
latter to Congress." This approval and ratification 
alone rendered, in his opinion, the exercise of this, 
and other similar powers assumed by Congress, legiti- 
mate. 

Judge Iredell, in delivering his opinion, goes much 
more fully into the examination of the powers of the 
revolutionary government. He thinks that, as the 
power of peace and war was entrusted to Congress, 
they held, as a necessary incident, the power to estab- 
lish prize courts ; and that whatever powers they did 
in fact exercise, were acquiesced in and consented to, 
and, consequently, legitimated and confirmed. But he 
leaves no room to doubt as to the source whence this 
confirmation was derived. After proving that the 
several colonies were, to all intents and purposes, 
separate and distinct, and that they did not form "one 
people " in any sense of the term, he says : " If Con- 
gress, previous to the Articles of Confederation, pos- 
sessed any authority, it was an authority, as I have 
shown, derived from the people of each province, in 
the first instance." " The authority was not possessed 
by Congress, unless given by all the States." " I con- 
clude, therefore, that every particle of authority, which 
originally resided either in Congress or in any branch 
of the State governments, was derived from the peo- 
ple who were permanent inhabitants of each province, 
in the first instance, and afterwards became citizens of 



72 THE FEDERAL GOVERNMENT : 

each State ; that this authority was conveyed by each 
body separately, and not by all the people in the several 
provinces or States jointly." No language could be 
stronger than this, to disarm Judge Story's conclusion, 
that the powers exercised by Congress were exercised 
"by the consent of the people of the United States'* 
Certainly, Iredell did not think so. 

The other two Judges, Blair and Cushing, affirm the 
general propositions upon which Patterson and Iredell 
sustained the power of Congress in the particular 
case, but lend us no support to the idea of any such 
unity among the people of the several colonies or 
States, as our author supposes to have existed. Cush- 
ing, without formally discussing the question, express- 
ly says that " he has no doubt of the sovereignty of 
the States." 

This decision, then, merely affirms, what no one 
has ever thought of denying, that the revolutionary 
government exercised every power which the occasion 
required ; that, among these, the powers of peace and 
war were most important, because Congress, alone, 
represented all the colonies, and could, alone, express 
the general will, and wield the general strength ; that 
wherever the powers of peace and war are lodged, be- 
longs also the right to decide all questions touching 
the laws of nations ; that prize causes are of this 
character ; and, finally, that all these powers were not 
derived from any original grant, but are to be consid- 
ered as belonging to Congress, merely because Congress 
exercised them, and because they were sustained in so 



ITS TBUE NATURE AND CHARACTER. 73 

doing by the approbation of the several colonies or 
States, whose representatives they were. Surely, then, 
our author was neither very accurate nor very candid 
in so stating this decision as to give rise to the idea 
that, in the opinion of the Supreme Court, Congress 
possessed original sovereign powers, by the consent 
of "the people of the United States." Even, however, 
if they court had so decided, in express terms, it would 
have been of no value in the present inquiry, as will 
by-and-by be shown. 

The examination of this part of the subject has 
probably already been drawn out to too great an ex- 
tent ; but it would not be complete without some no- 
tice of another ground, upon which our author rests 
his favorite idea — that the people of the colonies form- 
ed " one people," or nation. Even if this unity was 
not produced by the appointment of the revolutionary 
government, or by the nature of the powers exercised 
by them, and acquiesced in by the people, he thinks 
there can be no doubt that this was the necessary re- 
sult of the Declaration of Independence. In order 
that he may be fully understood upon this point, I 
will transcribe the entire passage relating to it : 

"In the next place, the colonies did not severally 
act for themselves, and proclaim their own independ- 
ence.* It is true that some of the States had pre- 



* This statement of Judge Story is in opposition to the following language 
of Judge Henry Baldwin, who was confessedly one of the ablest jurists who 
has graced the bench of the Supreme Court of the United States : " Their 
separate independence was proclaimed, and they remained towards 



v/ 



74 THE FEDERAL GOVERNMENT : 

viously formed incipient governments for themselves ; 
but it was done in compliance with the recommenda- 
tions of Congress. Virginia, on the 29th of June, 
1776, by a convention of delegates, declared ' the gov- 
ernment of this country, as formerly exercised under 
the Crown of Great Britain, totally dissolved/ and 
proceeded to form a new constitution of government. 
New Hampshire also formed a new government, in 
December, 1775, which was manifestly intended to be 
temporary, ' during/ as they said, ' the unhappy and 
unnatural contest with Great Britain.' New Jersey, 
too, established a frame of government, on the 2d 
Jul}-, 1776 ; but it was expressly declared that it 
should be void upon a reconciliation with Great 
Britain. And South Carolina, in March, 1776, adopt- 
ed a constitution of government ; but this was in like 
manner ' established until an accommodation between 
Great Britain and America could be obtained/ But 
the declaration of the independence of all the colonies 
was the united act of all. It was ' a declaration of the 
representatives of the United States of America, in 



each other as they were before, as colonies, and then as States ; they did 
not alter their relations ; the same delegates from the colonies acted as the 
representatives of ihe States ; so declared themselves, and continued their 
session without new credentials. The appointing power being the same, 
the separate legislature of each State, as a State, nation, or empire ; the 
people the supreme head, as the King, the Emperor, the Sovereign. 
These colonies were not declared to be free and independent States by sub- 
stituting Congress in the place of King and Parliament ; nor by the people 
of the States, transferring to the United States that allegiance they had 
owed to the Crown." Bald. 29.— [G. C. B. 



ITS TRUE NATURE AND CHARACTER. 75 

Congress assembled ;' ' by the delegates appointed by 
the good people of the colonies/ as in a prior declara- 
tion of rights, they were called. It was not an act 
done by the State governments then organized, nor by 
persons chosen by them. It was emphatically the act 
of the whole people of the united colonies, by the in- 
strumentality of their representatives, chosen for that, 
among other purposes. It was an act not competent 
to the State governme nts, or any of them, as organ- 
ized under their charters, to adopt. Those charters 
neither contemplated the case nor provided for it. It 
was an act of original, inherent sovereignty by the 
people themselves, resulting from th eir right to change 
the form of government, and to institute a new gov- 
ernment, whenever necessary for their safety and hap- 
piness. So the Declaration of Independence treats it. 
No State had presumed, of itself, to form a new gov- 
ernment, or to provide for the exigencies of the times, 
without consulting Congress on the subject ; and when 
they acted, it was in pursuance of the recommenda- 
tion of Congress. It was, therefore, the achievement of 
the whole, for the benefit of the whole. The people 
of the united colonies made the united colonies free 
and independent States, and absolved them from alle- 
giance to the British Crown. The Declaration of In- 
dependence has, accordingly, always been treated as 
an act of paramount and sovereign authority, com- 
plete and perfect per se ; and ipso facto working an en- 
tire dissolution of all political connection with, and 
allegiance to> Great Britain. And this, not merely as 



76 THE FEDERAL GOVERNMENT : 

a practical fact, but in a legal and constitutional view 
of the matter by courts of justice." The first question 
which this passage naturally suggests to the mind of 
the reader is this : if two or more nations of people, 
confessedly separate, distinct and independent, each 
having its own peculiar government, without any 
" direct political connection with each other," yet 
owing the same allegiance to one common superior, 
should unite in a declaration of rights which they be- 
lieved belonged to all of them alike, would that cir- 
cumstance alone make them " one people ?" Stripped 
of the circumstances with which Judge Story has sur- 
rounded it, this is, at last, the only proposition in- 
volved. If Spain, Naples, and Holland, while they 
were " dependencies M of the Imperial Crown of 
France, had united in declaring that they were op- 
pressed, in the same mode and degree, by the mea- 
sures of that Crown, and that they did, for that 
reason, disdain all allegiance to it, and assume the 
station of " free and independent States," would they 
thereby have become one people ? Surely this will 
not be asserted by any one. We should see, in that 
act, nothing more than the union of several independ- 
ent sovereignties, for the purpose of effecting a com- 
mon object, which each felt itself too weak to effect 
alone. Nothing would be more natural, than that 
nations so situated should establish a common mili- 
tary power, a common treasury, and a common agency, 
through which to carry on their intercourse with other 
powers ; but that all this should unite them together,- 



ITS TRUE NATURE AND CHARACTER. 77 

so as to form them into one nation, is a consequence 
not readily perceived. The case here supposed is pre- 
cisely that of the American colonies, if those colonies 
were, in point of fact, separate, distinct, and inde- 
pendent of one another. If they were so, (and I think 
it has been shown that they were,) then the fact that 
they united in the Declaration of Independence does 
not make them " one people " any more than a similar 
declaration would have made Spain, Naples and Hol- 
land one people ; if they were not so, then they were 
one people already, and the Declaration of Independ- 
ence did not render them more or less identical. It is 
true, the analogy here supposed does not hold in every 
particular ; the relations of the colonies to one another 
were certainly closer, in many respects, than those of 
Spain, Naples and Holland, to one another. But as to 
all purposes involved in the present inquiry, the anal- 
ogy is perfect. The effect attributed to the Declara- 
tion of Independence presupposes that the colonies 
were not " one people " before ; an effect which is in 
no manner changed or modified by any other circum- 
stance in their relation to one another. That fact, 
alone, is necessary to be inquired into ; and until that 
fact is ascertained, the author's reasoning as to the 
effect of the Declaration of Independence, in making 
them " one people," does not apply. He is obliged, 
therefore, to abandon the ground previously taken, to 
wit : that the colonies were one people before the 
Declaration of Independence. And having abandon- 
ed it, he p^ces the colonies, as to this question, upon 



78 THE FEDERAL GOVERNMENT : 

the footing of any other separate and distinct nations; 
and, as to these, it is quite evident that the conclusion 
which he has drawn, in the case of the colonies, could 
not be correct, unless it would be equally correct 
in the case of Spain, Naples and Holland, above sup- 
posed. 






ITS TRUE NATURE AND CHARACTER. 79 



CHAPTEE V* 

THE DECLARATION OF INDEPENDENCE DID NOT CONSOLIDATE 
THE COLONIES INTO ONE PEOPLE. 

The mere fact, then, that the colonies united in the 
Declaration of Independence, did not necessarily make 
them one people. But it may be said that this fact 
ought, at least, to be received as proof that they con- 
sidered themselves as one people already. The argu- 
ment is fair, and I freely let it go for what it is worth. 
The opinion of the Congress of 1775, whatever it may 
have been, and however strongly expressed, could not 
possibly change the historical facts. It depended upon 
those facts, alone, whether the colonies were one peo- 
ple or not. They might by their agreement, expressed 
through their agents in Congress, make themselves 
one people through all time to come ; but their power, 
as to this matter, could not extend to the time past. 
Indeed, it is contended, not only by Judge Story, but 
by others, that the colonies did, by and in that act, agree 
to become " one people " for the future. They sup- 
pose that such agreement is implied, if not expressed, 
in the following passages : " We, therefore, .,the repre- 
sentatives of the United States of America," " do, in 
the name and by the authority of the good people of 



80 THE FEDERAL GOVERNMENT ! 

these colonies, solemnly publish and declare that these 
united colonies are, and of right ought to be, free and 
independent States. 5 ' Let us test the correctness of 
this opinion, by the history of the time, and by the 
rules of fair criticism. 

The Congress of 1775, by which independence was de- 
clared, was appointed, as has been before shown, by the 
colonies in their separate and distinct capacity, each act- 
ing for itself, and not conjointly with any other. They 
were the representatives each of his own colony, and not 
of any other ; each had authority to act in the name of 
his own colony, and not in that of any other ; each 
colony gave its own vote by its own representatives, 
and not by those of any other colony. Of course, it 
was as separate and distinct colonies that they de- 
liberated on the Declaration of Independence. When, 
therefore, they declare, in the adoption of that mea- 
sure, that they act as "the representatives of the 
United States of America," and " in the name and by 
the authority of the good people of these colonies," 
they must of course be understood as speaking in the 
character in which they had all along acted ; that is, 
as the representatives of separate and distinct colo- 
nies, and not as the joint representatives of any one 
people. A decisive proof of this is found in the fact 
that the colonies voted on the adoption of that mea- 
\J sure in their separate character, each giving one vote 
by all its own representatives, who acted in strict obe- 
dience to spec : fic instructions from their respective 
colonies, and the members signed the Declaration in 



ITS TRUE NATURE AND CHARACTER. 



81 



that way. So, also, when they declared that " these 
united colonies are, and of right ought to be, free and 
independent States," they meant only that their re- 
spective communities, which until then had been de- 
pendent colonies, should thereafter be independent 
States, and that (he same union, which existed be- 
tween them as colonies, should be continued between 
them as States. The measure under consideration 
looked only to their relation to the mother country, 
and not to their relation to one another ; and the sole 
question before them was, whether they should con- 
tinue in a state of dependence on the British Crown or 
not. Having determined that they would not, they 
from that moment ceased to be colonies, and became 
States ; united, precisely as before, for the common 
purpose of achieving their common liberty. The idea 
of forming a closer union, by the mere act of declaring 
themselves independent, could scarcely have occurred 
to any one of them. The necessity of such a measure 
must be apparent to all, and it had long before en- 
gaged their attention in a different form. Men, of 
their wisdom and forecast, meditating a measure so 
necessary to their common safety, would not have left 
it as a mere matter of inference from another mea- 
sure. In point of fact, it was already before them, in 
the form of a distinct proposition, and had been so 
ever since their first meeting in May, 1775.* It is im- 



* A document which I have not met with elsewhere, but which may be 
found in the Appendix to Professor TucKer's elaborate and instructive Life 



82 THE FEDERAL GOVERNMENT : 

possible to suppose, therefore, in common justice to 
the sagacity of Congress, that they meant anything 
more by the Declaration of Independence, than simply 
to sever the tie which had theretofore bound them to 
England, and to assert the rights of ihe separate and 
distinct colonies, as separate and independent States ; 
particularly as the language which they use is fairly sus- 
ceptible of this construction. The instrument itself is 
entitled, " The Unanimous Declaration of the Thirteen 
United States of America ;" of States, separate and 



of Jefferson, affords important evidence upon tliis point. As early as May, 
1775, the piano! a "confederation and perpetual union" among the colo- 
nies, was prepared and proposed for adoption. It was not in fact adopted, 
but its provisions show, in the strongest manner, in what light the colonies 
regarded their relation to one another. The proposed union was called "a 
firm league of friendship ;" each colony reserved to itself " as much as it 
m'ght think proper of its own present laws, customs, rights, privileges, and 
peculiar jurisdictions, within its own limits ; and may amend its own Con- 
stitution as may seem best to its own Assembly or Convention ;" the exter- 
nal relations of the colonies were to be managed by their general govern- 
ment alone, and all amendments of their " Constitution," as they termed it, 
were to be proposed by Congress and " approved by a majority of the colony 
assemblies." It can scarcely be contenOed that this " league of friendship," 
this " confederation and perpetual union," would, if it had been adopted, 
have rendeied the people of the several colonies less identical than they 
were before. If, in their opinion, they were "one people" already, no 
league or confederation was necessary, and no one would have thought of 
proposing it. The very fact, therefore, that it was proposed, as a necessary 
measure ''for their common defence against their enemies, for the security 
of their liberties and their properties, (he safety of their persons and fami- 
lies, and their mutual and general welfare," proves that they did not con- 
sider themselves as already " one people," in any sense or to any extent 
which would enable them to effect those important objects. 

This propos't ; on was depending and undetermined at the time of the 
Deda.ation or Independence. 



ITS TRUE NATURE AND CHARACTER. 83 

distinct bodies politic, and not of " one people " or 
nation, composed of all of them together ; " united," 
as independent States may be, by compact or agree- 
ment, and not amalgamated, as they would be, if they 
formed one nation or body politic. 

Is it true, then, as Judge Story supposes, that the 
" colonies did not severally act for themselves, and 
proclaim their own independence?" It is true that 
they acted together ; but is it not equally true that each 
acted for itself alone, without pretending to any right 
or authority to bind any other ? Their declaration 
was simply their joint expression of their separate wills ; 
each expressing its own will, and not that of any other ; 
each bound by its own act, and not responsible for the 
act of any other. If the colonies had severally de- 
clared their independence through their own legisla- 
tures, rnd had afterwards agreed to unite their forces 
together to make a common cause of their con 'est, and 
to submit their common interests to the management 
of a common council chosen by themselves, wherein 
would their situation have been different ? And is it 
true that this Declaration of Independence " was not 
an act done by the State governments then organized, 
nor by persons chosen by them ?" that " it was em- 
phatically the act of the whole people of the united 
colonies, by the instrumentality of their representa- 
tives chosen for that, among other purposes ?" "What 
representatives were those that were chosen by " the 
people of the united colonies?" When and how 
were they chosen ? Those who declared the colonies 



84 THE FEDERAL GOVERNMENT I 

independent, were chosen more than a year before that 
event ; they were chosen by the colonies separately, 
and, as has already been shown, through the instru- 
mentality of their own "governments then organ- 
ized ;" they were chosen, not for the " purpose " of 
declaring the colonies independent, but of protecting 
them against oppression, and bringing about a recon- 
ciliation with the parent country, upon fair terms, if 
possible. (Jefferson's Notes, 1st ed., 128, 129.) If 
there were any other representatives than those con- 
cerned in the Declaration of Independence, if that act 
was performed by representatives chosen by "the 
whole people of the colonies," for that or any other 
purpose, if any such representatives could possibly have 
been chosen by the colonies as then organized, no his- 
torical record, that has yet met my view, contains one 
syllable of the matter. 

The author seems to attach but little importance to 
the fact, that several of the colonies had established 
separate governments for themselves, prior to the De- 
claration of Independence. He regards this as of lit- 
tle consequence ; because he thinks that the colonies 
so acted only in pursuance of the recommendation of 
Congress, and would not have " presumed *' to do it, 
" without consulting Congress upon the subject ;" and 
because the governments so established were, for the 
most part, designed to be temporary, and to continue 
only during the contest with England. Such recom- 
mendation was given in express terms, to New Hamp- 
shire and South Carolina, in November, 1775, and to 



ITS TEUE NATURE AND CHARACTER. 85 

Virginia, in December of that year ; and on the 10th 
May, 1776, " it was resolved to recommend to the re- 
spective assemblies and conventions of the united 
colonies where no government sufficient to the exigen- 
cies of their affairs had been established, to adopt such 
a government as should, in the opinion of the repre- 
sentatives of the people, best conduce to the happiness 
and safety of their constituents in particular, and of 
America in general." The preamble to this resolution 
was not adopted till the 15th May. (1 Elliott's De- 
bates, 80, 83.) It is evident, from the language here 
employed, that Congress claimed no power over the 
colonies as to this matter, and no right to influence 
or control them in the exercise of the important 
function of forming their own governments. It re- 
commended only ; and contemplating the colonies as 
separate and distinct, referred it to the assembly or 
convention of each, to establish any form of govern- 
ment which might be acceptable to its own people. 
Of what consequence was it whether the colonies 
acted upon the recommendation and advice of others, 
or merely upon their own will and counsels ? With 
whatever motive the act was performed, it was one of 
supreme and sovereign power, and such as could not 
have been performed except by a sovereign people. 
And whether the government so established was in- 
tended to last forever, or only for a limited time, did 
not affect its character as an act of sovereign power. 
In point of fact, then, the colonies which established 
such governments did, by that very act, assert their 



86 THE FEDERAL GOVERNMENT ! 

sovereignty and independence. They had no power 
tinder their charters, to change their governments. 
They could do so only by setting their charters aside, 
and acting upon their inherent, sovereign right : and 
this was revolution. In effect, therefore, many of the 
colonies had declared their independence prior to the 
4th July, 1776 ; they hid commenced the revolution, 
and were considered by England as in a state of re- 
bellion. Of Virginia this is emphatically true. Her 
declaration of rights was made on the 12th of June, 
1776 ; and her Constitution was adopted on the 28th 
of the same month. This Constitution continued until 
1829. Her subsequent declaration of independence, 
on the 4th of July, in common with the other colonies, 
was but a more public, though not a more solemn af- 
firmation of what she had previously done ; a pledge 
to the whole world, that what she had resolved on in 
her separate character, she would unite with the other 
colonies in performing. She could not declare herself 
free and independent more distinctly, in that form, 
than she had already done, by asserting her sovereign 
and irresponsible power, in throwing off her former 
government, and establishing a new one for herself.* 



* In point of fact, Virginia declared her independence on tbe 15th of May, 
1TT6. The following beautiful allusion to that scene is extracted from an ad- 
dress delivered by Judge Beverly Tucker, of William and Ma: y College, be- 
Gre the Petersburgh Lyceum, on the 15th of May, 1343 : 

" That spectacle, on thi3 day sixty-three years, Virginia exhibited to the 
world : and the memory of that majestic scene it is now my task to rescue 
from oblivion. It was on that day that she reuounced her colonial depend- 
ence on Great Britain, and separated herself forever from that kingdom. 



ITS TIITJE NATURE AND CHARACTER. 87 

There is yet another view of this subject, which can- 
not be properly omitted. It has already been shown 
that, prior to the Revolution, the colonies were sepa- 



Th en it was that, bursting the manacles of a foreign tyranny, she, in the 
same moment, imposed on herself the salutary restraints of law and oider. 
In that moment she commenced the work of forming a government, com- 
plete within itself ; and having perfected that work, she. on the 29th of June 
in the same year, performed the highest function of independent sovereign" 
ty, by adopting, ordaining, and establishing the Constitution under which 
all of us were born. Then it was that, sufficient to herself for all the pur, 
poses of government, she prescribed the oath of fealty and allegiance to her 
sole and separate soveieignty, which all of us, who have held any office 
under her authority, have solemnly called upon the Searcher of Hearts to 
witness and record. In that hour, gentlemen, it could not be certainly 
known, that the other colonies would take the same decisive step. It was* 
indeed, expected. In tne same breath in which she had declared her own 
independence, Virginia had advised it. She had instructed her delegates 
in the Gene ml Congress to urge it ; and it was by the voice of one of her 
sons, whose name will ever proudly live in her history, that the word of 
power was spoken, at which the chain that bound trie colonies to the parent 
kingdom fell asunder, * as flax that severs at the touch of fire.' But even 
then, and while the terms of the general Declaration of Independence were 
yet unsettled, hers had already gone forth. The voice of her defiance was 
already ringing in the tyrant's ears ; hers was the cry that summoned him 
to the strife ; hers was the shout that invited his vengeance : i Me! me! 
Ad sum qui feci ; in me, converlite ferrum.' » 

This beautiful address, abounding in patriotic sentiments, and sound 
political doctrines, clothed in the richest language, ought to be in the hands 
of every citizen, particularly of those of Virginia. The following extract 
rom the Journals of the Convention, containing the history of this inter- 
esting event, cannot fail to be acceptable to every American reader : 

* Wednesday, May 11th, 1776. 
" The Convention, then, according to the order of the day, resolved itself 
into a committee on the state of the colony ; and, after some time spent 
therein, Mr. President resumed the chair*, and Mr. Cary reported that the 
committee had, according to order, had under consideration the state of the 
colony ; and had come to the following resolutions thereupon ; which he 
had read in his place, and afterwards delivered at the clerk's table, where 



88 THE FEDERAL GOVERNMENT : 

rate and distinct, and were not, in any political sense, 
or for any purpose of government, " one people." The 
sovereignty over them was in the British Crown ; but 



the same were again twice read, and unanimously agreed to, one hundred 
and twelve members being present. 

" For as much as all the endeavors of the united colonies, by the most 
decent representations and petitions to the King and Parliament of Great 
Britain, to restore peace and security to America under the British Gove n- 
ment, and a reunion with that people, upon just and liberal te.ms, instead 
of a redress of grievances, have produced fiom an imperious and vindictive 
administration, increased insult, oppression, and a vigorous attempt to 
effect our total destruction. By a late act, all these colonies are declared to 
be in rebellion, and out of the protection of the British Crown, our proper- 
ties subjected to confiscation, our people, when captivated, compelled to 
join in the plunder and murder of their relations and countrymen, and all 
former rapine and oppression of Americans declared legal and just. Fleets 
and armies are raised, and the aid of foreign troops engaged to assist these 
destructive purposes. The King's representative in this colony hath not only 
withheld all powers of government from operating for our safety, but hav- 
ing retired on board an armed ship, is carrying on a piratical and savage 
war against us, tempting our slaves by every artifice to resort to him, and 
training and employing them against their masters. 

" In this state of extreme danger, we have no alternative left, but an ab- 
ject submission to the will of those overbearing tyrants, or a total separation 
from the Ciown and Government of Great Britain, uniting and exerting the 
strength of all America for defence, and forming alliances with foreign pow- 
ers for commerce and aid in war. Wherefore, appealing to the Searcher 
of all Hearts for sincerity of foimer declarations, expressing our desire to 
preserve our connection with that nation, and that we are driven from that 
inclination by their wicked councils, and the eternal laws of self-preserva- 
tion ; resolved unanimously, that the delegates appointed to represent this 
colony in general Congress, be instructed to propose to that respectable 
body, to declare the united colonies free and independent States, absolved 
from all allegiance to, or dependence upon the Crown or Parliament of 
Great Britain ; and that they give the assent of this colony to that declara- 
tion, and to whatever measures maybe thought proper and necessary by 
the Congress, for foiming foreign alliances, and a confederation of the colo- 
nics, at such time and in such manner as to them may seem best. Provided, 



ITS TRUE NATURE AND CHARACTER. 89 

that sovereignty was not jointly over all, but separat ly 
over each, and might have been abandoned as to some, 
and retained as to others. The Declaration of Inde- 
pendence broke this connection. By that act, and not 
by the subsequent recognition of their independence, 
the colonies became free States. What then became 
of the sovereignty of which we speak ? It could not 
be in abeyance ; the moment it was lost by the British 
Crown, it must have vested somewhere else. Doubt- 
less it vested in the States themselves. But, as they 
were separate and distinct as colonies, the sovereignty 
over one could not vest, either in whole or in part, in 
any other. Each took to itself that sovereignty which 
applied to itself, and for which alone it had contended 



that the /power of forming government for, and the regulations of the 
internal concerns of each colony, be left to the respective colonial legisla- 
tures. 

"Resolved, unanimously, that a committee be appointed to prepare a 
declaration of rights, and such a plan of government, as will be most likely 
to maintain peace and order hi this colony, and secure substantial and 
equal liberty to the people. 

" And a committee was appointed of the following gentlemen: 

" Mr. Archibald Cary, Mr. Meriweather Smith, Mr. Mercer, Mr. Henry Lee, 
Mr. Treasurer, Mr. Henry, Mr. Dandridge, Mr. Edmund Randolph, Mr. Gil- 
mer, Mr. Bland, Mr. Digges, Mr. Carrington, Mr. Thomas Ludwel Lee, Mr. 
Cabell, Mr. Jones, Mr. Blair, Mr. Fleming, Mr. Tazewell, Mr. Richard Cary, 
Mr. Bullit, Mr. Watts, Mr. Banister, Mr. Page, Mr. Starke, Mr. David Mason, 
Mr. Adams, Mr. Read, and Mr. Thomas Lewis." 

It is impossible to contemplate this proceeding on the part of Virginia, 
without being convinced that she acted from her own free and severe ; gn 
will ; and that she, at least, did " presume n to establish a governmcut Tor 
herself, without the least regard to the recommendation or the pleasure of 
Congress 



90 THE FEDERAL GOVERNMENT ! 

with tlie British Crown, to wit : the sovereignty over 
itself. Thus each colony became a free and sovereign 
State. This is the character which they claim in the 
very terms of the Declaration of Independence ; in 
this character they formed the Colonial Government, 
and in this character that government always regarded 
them. Indeed, even in the earlier treaties with foreign 
powers, the distinct sovereignty of the States is care- 
fully recognized. Thus, the treaty of alliance with 
France, in 1778, is made between " the most Christian 
King and the United States of North America, to wit : 
New Hampshire, Massachusetts Bay, Khode Island, 
Connectiut," &c, enumerating them all by name. The 
same form is observed in the treaty of amity and com- 
merce with the States General of the United Nether- 
lands, in 1782, and in the treaty with Sweden, in 1783. 
In the convention with the Netherlands, in 1782, con- 
cerning recaptured vessels, the names of the States are 
not recited, but "the United States of America " is the 
style adopted ; and so also in some others. This cir- 
cumstance shows that the two forms of expression 
were considered equipollent ; and that foreign nations, 
in treating with the revolutionary government, consid- 
ered that they treated with distinct sovereignties, 
through their common agent, and not with a new na- 
tion, composed of all those sovereign countries to- 
gether. It is true, they treated with them jointly, and 
not severally ; they considered themselves all bound 
to the observance of their stipulations, and they be- 
lieved that the common authority, which was establish- 



ITS TRUE NATURE AND CHARACTER. 91 

cd between and among them, was sufficient to secure 
that object. The provisional articles with Great 
Britain, in 1782, by which our independence was ac- 
knowledged, proceeded upon the same idea. The first 
article declares, that " His Britannic Majesty acknowl- 
edges the said United States, to wit : New Hampshire, 
Massachusetts Bay, Ehode Island and Providence 
Plantations, Connecticut, New York, New Jersey, 
Pennsylvania, Delaware, Maryland, Virginia, North 
Carolina, South Carolina and Georgia, to be free, sov- 
ereign and independent States ; that he treats with 
them as such/' &c. Thus the very act, by which their 
former sovereign releases them from their allegiance 
to him, confirms to each one by name the sovereignty 
within its own limits, and acknowledges it to be a 
"free, sovereign, and independent State ;" united, in- 
deed, with all the others, but not as forming with them 
any new and separate nation. The language employ- 
ed is not suited to convey any other idea. If it had 
been in the contemplation of the parties, that the 
States had merged themselves into a single nation, 
something like the following formula would naturally 
have suggested itself as proper : " His Britannic Ma- 
jesty acknowledges that New Hampshire, Massachu- 
setts Bay, &c, former colonies of Great Britain, and 
now united together as one people, are a free, sovereign 
and independent State" &c. The difference between 
the two forms of expression, and the strict adaptation 
of each to the state of things which it contemplates, 
will be apparent to every reader. 



92 THE FEDERAL GOVERNMENT ! 

It requires strong and plain proof to authorize us 
to say, that a nation once sovereign has ceased to 
be so. And yet Judge Story requires us to believe 
this of the colonies, although he acknowledges that 
he cannot tell, 'with any degree of confidence or pre- 
cision, when, how, or to what extent the sovereignty, 
which they acquired by declaring their independence, 
was surrendered. According to him, the colonies are 
to be presumed to have yielded this sovereignty to a 
government established by themselves for a special 
and temporary purpose, which existed only at their 
will, and by their aid and support ; whose powers 
were wholly undefined, and for the most part exercised 
by usurpation on its part, and legitimated only by the 
acquiescence of those who appointed it ; whose au- 
thority was without any adequate sanction which it 
could itself apply, and which, as to all the important 
functions of sovereignty, was a mere name — the 
shadow without the substance ! If the fact was really 
so, I venture to affirm that the history of the world 
affords no similar instance of folly and infatuation. 

[The language of the Supreme Court is very full in 
declaring that the colonies did not lose their sovereign 
independence of each other and become one people by 
virtue of the Declaration of Independence of Great 
Britain. "No sovereignty did or could exist over 
them, unless that of Great Britain should be re- 
stored by a reconciliation ; which not happening, 
their Declaration of Independence, in their sepa- 
rate conventions, became absolute, and these States 



ITS TRtJE NATURE AND CHARACTER. 93 

were independent, according to the universal opin- 
ion of the country, which is most clearly express- 
ed in the language of this Court." (.4 Cranch, 
212, McHvaine v. Goxe.) "If the authority of this 
Court is respected, the Declaration of Independ- 
ence is to the judicial mind what it is to the common 
eye, a proclamation to the world, by the separate States, 
assembled in Congress by their respective deputies, 
voting for and signing the instrument by States, a 
publication of their existing political condition, each 
as an independent State." " They declared these united 
colonies to be independent States, not one Slate" (or coun- 
try,) " as the State of Great Britain." "Each declared 
itself sovereign and independent, according to the 
limits of their territory." (Baldwin, 74, 75 ; 12 Whea- 
ton, 522, 7.) In October, 1776, Congress directed that 
every officer should swear, that "I acknowledge the 
thirteen United States of America, namely : New 
Hampshire, &c, to be free, independent and sovereign 
States." The name of each of the thirteen States 
was named as a distinct sovereignty. (2 Journal of 
Congress, 400.) In November of the same year, Con- 
gress addressed a circular letter to the respective 
legislatures of the States, speaking of them as "so 
many sovereign and independent communities," and 
"to each respective legislature it is recommended/ 
&c. (1 Laws U. S., 12, 13.) How can such language 
be reconciled with the idea of Judge Story, that " the 
colonies did not severally act for themselves?"- — 
C. C. B.l 



94: THE FEDERAL GOVERNMEOT 



CHAPTEE VI. 

THE ARTICLES OF CONFEDERATION DID NOT IMPAIR THE 
SOVEREIGNTY OF THE STATES, NOR CONSOLIDATE THEM 
INTO ONE PEOPLE. 

"Whatever may have been the condition of the colo- 
nies prior to 1781, there is no room for doubt on the 
subject, after the final ratification of the Articles of 
Confederation in that year. Those articles declare 
that " each State retains its sovereignty, freedom and 
independence, and every power, jurisdiction and right, 
which is not by this confederation expressly delegated 
to the United States, in Congress assembled." The 
obvious construction of this clause requires that we 
should apply these latter words only to "powers, 
jurisdiction and rights ;" some of which, as enjoyed 
by the States under the previous government, were 
clearly surrendered by the Articles of Confederation. 
But their entire sovereignty, their entire freedom, and 
their entire independence, are reserved, for these are 
not partible. Indeed, this is clear enough, from the 
provisions of that instrument, which, throughout, con- 
template the States as free, sovereign and independ- 
ent.* It is singular, too, that it should escape the 

* Commenting upon the separate independence of the States, Judge 
Baldwin says : " Such was the situation of the States and people, from 
1776 till 1781, when the several State legislatures made an act of Federation, 
as allied sovereigns, which was only a league or alliance." This ConTed- 



ITS TRUE NATURE AND CHARACTER. 95 

observation of any one, that the very fact of adopt- 
ing those articles, and the course pursued in doing so, 
attest, with equal clearness and strength, the previous 
sovereignty and independence of the States. "What 
had the States in their separate character to do with 
that act, if they formed altogether "one people?" 
And yet the States, and the States alone, performed 
it, each acting for itself, and binding itself. The arti- 
cles were confirmed by ten States, as early as 1778, by 
another in 1779, and by another in 1780 ; and yet they 
were not obligatory until Maryland acceded to them, 
in 1781. Nothing less than the ratification of them by 
all the States, each acting separately for itself, was 
deemed sufficient to give them any binding force or 
authority. 

There is much force and meaning in the word " re- 
tains," as it occurs in the clause above quoted. Noth- 
ing can properly be said to be retained, which was not 
possessed before ; and of course the States possess- 
ed before " sovereignty, freedom, and independence." 
These they retained without any qualification, or 
limitation, and they also retained every " power, juris- 
diction, and right," which they did not then expressly 
surrender. 

If these views on the subject be not wholly decep- 
tive, Judge Story has hazarded, without due caution, 
the opinion that the colonies formed " one people," 

eration of 1781 may be regarded as tne actual date of the Union. Some of 
its details were afterwards modified, curtailed or extended, but the princi- 
ple of allied sovereign Staxes was never cnauged.— [0. C. B. 



96 THE FEDERAL GOVERNMENT : 

either before or after the Declaration of Independence, 
and that they are not to be regarded as sovereign 
States after that event. For myself, I profess my utter 
inability to perceive, in their condition, any nearer 
approach to political personality or individuality, than 
may be found in a mere league or confederation be- 
tween sovereign and independent States ; and a very 
loose confederation theirs undoubtedly was.* 



* That the Union in 1781 was simply a league of separate sovereign com- 
munities, is sufficiently attested in Article HI. of the Confederation : " The 
said States hereby severally enter into a firm league of friendship with each 
other for their common defence, the security of their liberties, and their 
mutual and general welfare, binding themselves to assist each other against 
all force offered to, or attacks made upon them, or any of them, on account 
of religion, trade, or any other pretense whatever."— [C. C. B. 






ITS TRUE NATURE AND CHARACTER. 97 



CHAPTEE VII. 

THE CONSTITUTION DID NOT CHANGE THE SOVEREIGN ATTI- 
TUDE OF THE STATES, OR CONSOLIDATE THEM INTO A 
NATIONAL GOVERNMENT. 

The third division of Judge Story's work commences 
with a history of the adoption of the Constitution. 
This also is given in an abridged form ; but it omits 
nothing which can be considered material to the in- 
quiry. Perhaps the author has fallen into one error, 
an important one, certainly, in stating that " at the 
time and place appointed, the representatives of twelve 
States assembled/' When the deputies first met in 
Philadelphia, in May, 1787, the representatives of only 
nine States appeared ; they were, soon after, joined 
by those of three others. The author next proceeds 
to state the various objections which were urged 
against the Constitution, with the replies thereto ; to 
examine the nature of that instrument ; to ascertain 
whether it be a compact or not ; to inquire who is the 
final judge or interpreter in Constitutional contro- 
versies ; to lay down rules of interpretation ; and, 
finally, to examine the Constitution in its several de- 
partments and separate clauses. In the execution of 
this part of his task, he has displayed great research, 



98 THE FEDERAL GOVERNMENT I 

laborious industry, and extensive judicial learning. 
The brief summary which he has given of the argu- 
ments by which the Constitution was assailed on the 
one hand, and defended on the other, is not only inter- 
esting as matter of history, but affords great aid in 
understanding that instrument. We should be care- 
ful, however, not to attach to these discussions an un- 
due importance. All the members of the various con- 
\ ventions did not engage in the debates, and, of course, 
we have no means of determining by what process of 
reasoning they were led to their conclusions. And 
we cannot reasonably suppose that the debaters al- 
ways expressed their deliberate and well weighed opin- 
ions in all the arguments, direct and collateral, by 
which they sought to achieve a single great purpose. 
We are not, therefore, to consider the Constitution as 
the one thing or the other, merely because some of the 
framers, or some of the adopters of it, chose to char- 
acterize it in their debates. Their arguments are 
valuable as guides to our judgments, but not as au- 
thority to bind them. 

In the interpretation of the Constitution, the author 
founds himself, whenever he can, upon the authority 
of the Supreme Court. This was to be expected ; for, 
in so doing, he has, in most cases, only reiterated his 
own judicial decisions. We could not suppose that 
one, whose opinions are not lightly adopted, would ad- 
vance, as a commentator, a principle which he reject- 
ed as a judge. In most cases, too, no higher authori- 
ty in the interpretation of the Constitution is known 



ITS TRUE NATURE AND CHARACTER. 99 

in our systems, and none better could be desired. It is 
only in questions of political power, involving the 
rights of the States in reference to the Federal Gov- 
ernment, that any class of politicians are disposed to 
deny the authority of the judgments of the Supreme 
Court.* We shall have occasion to examine this sub- 



* Taking the relation of the States to each other, as it exists under the 
Constitution, and as declared by this Court, in one uniform and consistent 
series of adjudication, from 6 Cr. 136, to 2 Pet. 590, 1 : that " the several 
States are still foreign to each other, for all but Federal purposes ;" their 
position as " a single unconnected sovereign power " before and without 
any confederation between them, is an inevitable consequence." (Baldwin, 
83.) " As the States are still foreign to each other, for all but Federal pur- 
poses, the United States could have neither a right of soil nor jurisdiction, 
propriety or dominion, within any pa: tlcular State, but by a cession from 
the State by its legislature, or a convention of the people. * * The Con- 
stitution is a cession of jurisdiction only, made by the people of a State." 
(Baldwin, 84.) But the United States must have the " consent of a State," 
and "purchase from the owners of the soil "before it can build apost- 
ofHce, custom-house, fort, dock-ya -d, or any other public structure. Thus 
the sovereignty of a State over its own territory has not been ceded by the 
adoption of the Constitution. " By the treaty of peace with Great Britain, 
the powers of government, and the right of soil, which had previously been 
in Great Britain, passed definitely to these States." (8 Wheaton, 584.) 
" Then there could be no mode by which the United States could acquire 
either ■ the powers of government,' or the ' right of soil' in any territory, 
but by a cession from the States. * * And it was held by this Court, that 
the only territory which in fact belonged to the United States in 1787 was 
acquired by the cession from Virginia." " What then is the extent of juris- 
diction which a State possesses ? "We answer, without hesitation, the juris- 
diction of a State is co-extensive with its legislative power." (5 Wheat., 375 ; 
Baldwin, 87, 88.) The right of soil and general jurisdiction over the whole 
territory, within the boundaries of the several States, was invested in the 
people of each State, as absolute sovereigns of both ; neither right can be 
exercised but by a grant from them, and what is not given away by cession, 
Btill remains with them." (Baldwin, 99 ; 2 Peters, 468.) In 1795, Georgia, 
which had ceded none of its territory, made sale of a large tract on the 



100 THE FEDERAL GOVERNMENT I 

ject more at large, in a subsequent part of this re- 
view. 

In discussing the various clauses of the Constitu- 
tion, Judge Story displays great research, and a 
thorough acquaintance with the history of that in- 
strument. It is not perceived, however, that he has 
presented any new views of it, or offered any new 
arguments in support of the constructions which it 
has heretofore received. As a compendium of what 
others have said and done upon the subject, his work 
is very valuable. It facilitates investigation, whilst, at 
the same time, it is so full of matter, as to render little 
farther investigation necessary. Even in this view of 
the subject, however, it would have been much more 
valuable if it had contained references to the authori- 
ties on which its various positions are founded, instead 
of merely extracting their substance. The reader 
who, with his book as his guide, undertakes to ac- 
quaint himself with the Constitution of the United 
States, must take the authority of the author as con- 
clusive, in most cases ; or else he will often find him- 
self perplexed to discover the sources from which he 



Yazoo River. Tlie United States denied the right of Georgia to mate such 
sale. The question was brought before the Supreme Court in the case of 
Fletcher v. Peck, and the Court decided that the title of the land was in 
Georgia. (6 Cranch, 142.) Referring to the formation of the Union, the 
Court held that : " A judicial system was to be prepared, not for a consoli- 
dated people, but for distinct societies, already possessing distinct sys 
terns." (10 Wheaton, 46.) "The power having existed prior to the Con- 
stitution, and not having been prohibited by that instrument, remains with 
the States." (5 Wheaton, 16, 17 ; 2 Peters, 466.)— [C. C. B. ; 



ITS TRUE NATURE AND CHARACTER. 101 

derives Lis information. This is a great defect in a 
work of this sort, and is the less excusable, because it 
might have been easily avoided. A writer who under- 
takes to furnish a treatise upon a frame of govern- 
ment, in relation to which great and contested politi- 
cal questions have arisen, owes it alike to his reader 
and to himself, to name the sources whence he draws 
whatever information he ventures to impart, and the 
authorities upon which he founds whatever opinions 
he ventures to inculcate. The reader requires this for 
the satisfaction of his own judgment ; and the writer 
ought to desire it as affording the best evidence of his 
own truth and candor. 

In this division of the work, the author pursues the 
idea cautiously hinted in the first division, and more 
plainly announced in the second ; and he now carries 
it out boldly in its results. Having informed us that, 
as colonies, we were " for many purposes one people," 
and that the Declaration of Independence made us 
" a nation de facto/' he now assumes the broad ground 
that this " one people," or nation de facto, formed the 
Constitution under which we live. The consequences 
of this position are very apparent throughout the re- 
mainder of the work. The inferences fairly deduced 
from it impart to the Constitution its distinctive char- 
acter, as the author understands it ; and, of course, 
if this fundamental position be wrong, that instrument 
is not, in many of its provisions, what he represents it 
to be. The reader, therefore, should settle this ques- 
tion for himself in the outset ; because, if he differ 



102 THE FEDERAL GOVERNMENT I 

from the author upon this point, he will be compelled 
to reject by far the most important part of the third 
and principal division of these commentaries. 

The opinion, that the Constitution was formed by 
" the people of the United States/' as contradistin- 
guished from the people of the several States, that is, 
as contradistinguished from the States as such, is 
founded exclusively on the particular terms of the pre- 
amble. The language is : " We, the people of the 
United States, do ordain and establish this Constitu- 
tion for the United States of America." " The people 
do ordain and establish, not contract and stipulate 
with each other. The people of the United States, not 
the distinct people of a particular State with the peo- 
ple of the other States." In thus relying on the 
language of the preamble, Judge Story rejects the 
lights of history altogether. I will endeavor, in the 
first place, to meet him on his own ground. 

It is an admitted rule, that the preamble of a statute 
may be resorted to in the construction of it ; and it 
may r of course, be used to the same extent in the con- 
struction of a constitution, which is a supreme law. 
But the only purpose for which it can be used is to 
aid in the discovery of the true object and intention 
of the law, where these would otherwise be doubtful. 
The preamble can, in no case, be allowed to contradict 
the law, or to vary the meaning of its plain language. 
Still less can it be used to change the true character of 
the law-making power. If tho preamble of the Con- 
stitution had declared that it was made by the people 



ITS TRUE NATURE AND CHARACTER. 103 

of France or England, it might, indeed, have been re- 
ceived as evidence of that fact, in the absence of all 
proof to the contrary ; but surely it would not be so 
received against the plain testimony of the instrument 
itself, and the authentic history of the transaction. 
If the convention which formed the Constitution was 
not, in point of fact, a convention of the people of the 
United States, it had no right to give itself that title ; 
nor had it any right to act in that character, if it was 
appointed by a different power. And if the Constitu- 
tion, when formed, was adopted by the several States, 
acting through their separate Conventions, it is his- 
torically untrue that it was adopted by the aggregate 
people of the United States. The preamble, there- 
fore, is of no sort of value in settling this question ; 
and it is matter of just surprise that it should be so 
often referred to, and so pertinaciously relied on, for 
that purpose. History alone can settle all difficulties 
upon this subject. 

The history of the preamble itself ought to have 
convinced our author, that the inference which he 
draws from it could not be allowed. On the 6th of 
August, 1787, the committee appointed for that pur- 
pose reported the first draft of a Constitution. The 
preamble was in these words : "We, the people of 
the States of New Hampshire, Massachusetts, Rhode 
Island and Providence Plantations, Connecticut, New 
York, New Jersey, Pennsylvania, Delaware, Maryland, 
Virginia, North Caroina, South Carolina and Georgia, 
do ordain, declare and establish the following Consti- 



104 THE FEDERAL GOVERNMENT I 

tution, for the government of ourselves and our pos- 
terity." (1 Elliott's Debates, 255.) On the very next 
day this preamble was unanimously adopted ; and the 
reader will at once perceive, that it carefully preserves 
the distinct sovereignty of the States, and discoun- 
tenances all idea of consolidation, (lb. 263.) The 
draft of the Constitution thus submitted was discuss- 
ed, and various alterations and amendments adopted, 
(but without any change in the preamble,) until the 
8th of September, 1787, when the following resolution 
was passed : " It was moved and seconded to appoint 
a committee of five, to revise the style of, and arrange 
the articles agreed to by, the House ; which passed in 
the affirmative." (lb. 324.) It is manifest that this 
committee had no power to change the meaning of 
anything which had been adopted, but were authorized 
merely to " revise the style," and arrange the matter 
in proper order. On the 12th of the same month 
they made their report. The preamble, as they re- 
ported it, is in the following words : " We, the people 
of the United States, in order to form a more perfect 
union,* to establish justice, insure domestic tranquil- 



* The phrase " to form a more perfect union n has been sometimes quoted 
to prove that the new Constitution was designed to alter fundamentally tbe 
confederate nature of the Union. But it is surprising that any gentleman 
capable of comprehending the force of language should make such a mis- 
take as to imagine that the phrase " more perfect union » implied a consol- 
idation of the States. Union and consolidation are words of a very (lif- 
erent signification. The object was not to sink the Union in cons olidation, 
but to " form a more perfect Union." The name of our federation is not 



ITS TRUE NATURE AND CHARACTER. 105 

ity, provide for the common defence, promote the 
general welfare, and secure the blessings of liberty to 
ourselves and our posterity, do ordain and establish 
this Constitution for the United States of America. " 
(lb. 326.) It does not appear that any attempt was 
made to change this phraseology in any material point, 
or to reinstate the original. The presumption is, 
therefore, that the two were considered as substan- 
tially the same, particularly as the committee had no 
authority to make any change except in the style. 
The difference in the mere phraseology of the two was 
certainly not overlooked ; for on the 13th September, 
1787, "it was moved and seconded to proceed to the 
comparing of the report from the committee of re- 



Consolidated States, but United States. A number of States held to- 
gether by coercion, or the point of the bayonet, would not be a Union. 
Union is necessarily voluntary— the act oi choice, free association. Nor can 
th is voluntary system be changed to one of force without the destruction 
of "the Union." The Austrian Empire is composed of several States, as 
the Hungarians, the Poles, the Italians, etc., but it cannot be called a 
Union— it is a despotism. Is the relation between Russia and bayonet-held 
Poland a Union ? Is it not an insult and a mockery to call the compulsory 
relation between England and Ireland a Union ? In all these cases there is 
only such a union as exists between the talons of the hawk and the dove, or 
between the jaws of the wolf and the lamb. A union of States necessarily 
implies separate sovereignties, voluntarily acting together. And to bruise 
these distinct sovereignties into one mass of power is, simply, to destroy 
the Union— to overthrow our system of government. The Supreme Court 
has always been clear enough on this point: " No political dreamer was 
ever wild enough to think of breaking down the lines which separate the 
States, and of compounding the American people into one common mass. 
Of consequence, when they act, they act in their States." (4 Wheaton, 403 ; 
McCullough v. Maryland)— [C. C. B. 



106 THE FEDERAL GOVERNMENT : 

vision, with the articles which were agreed to by the 
House, and to them referred to for arrangement ; 
which passed in the affirmative. And the same was 
read by paragraphs, compared, and, in some places, 
corrected and amended," (lb. 338.) In what particu- 
lars these corrections and amendments were made, we 
are not very distinctly informed. The only change 
which was made in the preamble, was by striking out 
the word " to," before the words " establish justice ;" 
and the probability is, that no other change was made 
in any of the articles, except such as would make " the 
report of the committee of revision " " correspond 
with the articles agreed to by the House." The in- 
ference, therefore, is irresistible, that the convention 
considered the preamble reported by the committee 
of revision, as substantially corresponding with the 
original draft, as unanimously "agreed to by the' 
House." 

There is, however, another and a perfectly conclu- 
sive reason for the change of phraseology, from the 
States by name, to the more general expression " the 
United States ;" and this, too, without supposing that 
it was intended thereby to convey a different idea as 
to the parties to the Constitution. The revised draft 
contained a proviso, that the Constitution should go 
into operation when adopted and ratified by nine 
States. It was, of course, uncertain whether more 
than nine would adopt it or not, and if they should 
not, it would be altogether improper to name them as 
parties to that instrument. As to one of them, Rhode 



ITS TKUE NATURE AND CHAEACTEE. 107 

Island, she was not even represented in the conven- 
tion, and, consequently, the others had no sort of right 
to insert her as a party. Hence it became necessary 
to adopt a form of expression which would apply to 
those who should ratify the Constitution, and not to 
those who should refuse to do so. The expression ac- 
tually adopted answers that purpose fully. It means 
simply : " We, the people of those States who have 
united for that purpose, do ordain," &c. This con- 
struction corresponds with the historical fact, and 
reconciles the language employed with the circum- 
stances of the case. Indeed, similar language was not 
unusual, through the whole course of the Bevolution. 
" The people of His Majesty's colonies," " the people 
of the united colonies," "the people of the United 
States," are fomis of expression which frequently oc- 
cur, without intending to convey any other idea than 
that of the people of the several colonies or States. 

It is, perhaps, not altogether unworthy of remark, 
in reference to this inquiry, that the word " people " 
has no plural termination in our language. If it had, 
the probability is that the expression would have been 
"we, the peoples," conveying, distinctly, the idea of 
the people of the several States. But, as no such 
plural termination is known in our language, the least 
that we can say is, that the want of it affords no argu- 
ment in favor of the author's position. 

This brief history of the preamble, collected from 
the Journals of the Convention, will be sufficient to 
show that the author has allowed it an undue influ- 



108 THE FEDERAL GOVERNMENT : 

ence in his construction of the Constitution. It is not 
from such vague and uncertain premises, that conclu- 
sions, so important and controlling, can be wisely 
drawn. Judge Stoiy, however, is perfectly consistent 
in the two characters in which he appears before us ; 
the commentator takes no ground which the judge does 
not furnish. It is remarkable that although this ques- 
tion was directly presented in the case of Martin vs. 
Hunter's Lessees, and although the fact that the Con- 
stitution of the United States "was ordained and es- 
tablished, not by the States in their sovereign capaci- 
ties, but emphatically by the people of the United 
Spates," is made the foundation of the judgment of 
the Supreme Court in that case ; yet, Judge Story, in 
delivering the opinion of the Court, rests that position 
upon the preamble alone, and offers no other argu- 
ment whatever to support it. And this, too, although 
in his own opinion, upon the right decision of that 
case rested " some of the most solid principles which 
have hitherto been supposed to sustain and protect 
the Constitution of the United States/' It is much to 
be regretted, that principles so important should be 
advanced as mere dogmas, either by our judges or by 
the instructors of our youth. 

In this case, as in others, however, we ought not to 
be satisfied with simply proving that the author's con- 
clusions are not warranted by the facts and arguments 
from which he derives them. Justice to the subject 
requires a much more full and detailed examination of 
this important and fundamental question. 



ITS TRUE NATURE AND CHARACTER. 109 

I have endeavored to show, in the preceding part of 
this review, that the people of the several States, 
while in a colonial condition, were not " one people " 
in any political sense of the terms ; that they did not 
become so by the Declaration of Independence, but 
that each State became a complete and perfect sov- 
ereignty within its own limits ; that the revolutionary 
government, prior to the establishment of the confed- 
eration, was, emphatically, a government of the States 
as such, through Congress, as their common agent and 
representative, and that, by the Articles of Confedera- 
tion, each State expressly reserved its entire sover- 
eignty and independence. In no one of the various 
conditions, through which we have hitherto traced 
them, do we perceive any feature of consolidation ; 
but their character as distinct and sovereign States is 
always carefully and jealously preserved. "We are, 
then, to contemplate them as sovereign States, when 
the first movements towards the formation of the 
present Constitution were made. 

Judge Story has given a correct history of the pre- 
paratory steps towards the call of a convention. It 
was one of those remarkable events, (of which the 
history of the world affords many examples,) which 
have exerted the most important influence upon the 
destiny of mankind, and yet have sprung from causes 
which did not originally look to any such results. It 
is true, the defects of the confederation, and its total 
inadequacy to the purposes of an effective govern- 
ment, were generally acknowledged ; but I am not 



110 THE FEDERAL GOVERNMENT : 

aware that any decisive step was taken in any of the 
States, for the formation of a better system, prior to 
the year 1786. In that year the difficulties and em- 
barrassments under which our trade suffered, in con- 
sequence of the conflicting and often hostile commer- 
cial regulations of the several States, suggested to 
the Legislature of Virginia the necessity of forming 
among all the States a general system, calculated 
to advance and protect the trade of all of them. 
They accordingly appointed commissioners, to meet 
at Annapolis commissioners from such of the other 
States as should approve of the proceeding, for the 
purpose of preparing a uniform plan of commercial 
regulations, which was to be submitted to all the 
States, and, if by them ratified and adopted, to be ex- 
ecuted by Congress. Such of the commissioners as 
met, however, soon discovered that the execution of 
the particular trust with which they were clothed, in- 
volved other subjects not within their commission, and 
which could not be properly adjusted without a great 
enlargement of their powers. They, therefore, simply 
reported this fact, and recommended to their respective 
legislatures to appoint delegates to meet in general 
convention in Philadelphia, for the .purpose not merely 
of forming a uniform system of commercial regula- 
tions, but of reforming the government in any and 
every particular in which the interests of the States 
might require it. This report was also submitted to 
Congress, who approved of the recommendation it 
contained, and on the 21st of February, 1787, resolv- 



ITS TRUE NATURE AND CHARACTER. Ill 

ed, " that in the opinion of Congress, it is expedient 
that, on the second Monday in May next, a convention 
of delegates, who shall have been appoint d by the sev- 
eral States, be held at Philadelphia, for the sole and ex- 
press purpose of revising the Articles of Confedera- 
tion, and reporting to Congress and the several legisla- 
tures, such alterations and provisions therein, as shall, 
when agreed to in Congress, and confirmed by the 
States, render the Federal Constitution adequate to the 
exigencies of government, and the preservation of the 
Union." (1 Elliott's Debates, 185.) 

Such was the origin of the Convention of 1787. It 
is apparent that the delegates to that body were to be 
" appointed by the several States," and not by "the 
people of the United States ;" that they were to re- 
port their proceedings to " Congress and the several 
legislatures," and not to " the people of the United 
States ;" and that their proceedings were to be part of 
the Constitution, only when " agreed to in Congress 
and confirmed by the States," and not when confirmed 
by " the people of the United States." Accordingly, 
delegates were, in point of fact, appointed by the 
States ; these delegates did, in point of fact, report to 
Congress and the States ; and Congress did, in point 
of fact, approve, and the States did, in point of fact, 
adopt, ratify and confirm the Constitution which they 
formed. No other agency than that of the States as 
such, and of Congress, which was strictly the repre- 
sentative of the States, is to be discerned in any part 
of this whole proceeding. We may well ask, therefore, 



112 THE FEDEEAL GOVERNMENT ! 

from what unknown source our author derives the idea, 
that the Constitution was formed by " the people of 
the United States," since the history of the transaction, 
even as he has himself detailed it, proves that " the 
people of the United States" did not appoint dele- 
gates to the Convention, were not represented in that 
body, and did not adopt and confirm its act as their 
own! 

Even, however, if the question now before us be 
not, merely and exclusively, a question of historical 
fact, there are other views of it scarcely less decisive 
against our author's position. In the first place, I have 
to remark, that there were no such people as " the peo- 
ple of the United States," in the sense in which he 
uses those terms. The Articles of Confederation 
formed, at that time, the only government of the 
United States ; and, of course, we are to collect from 
them alone the true nature of the connection of the 
States with one another. Without deeming it neces- 
sary to enumerate all the powers which they con- 
ferred on Congress, it is sufficient to remark that they 
were all exercised in the name of the States, as free, 
sovereign and independent States. Congress was, in 
the strictest sense, the representative of the States. 
The members were appointed by the States, in what- 
ever mode each State might choose, without reference 
either to Congress or the other States. They could, 
at their own will and pleasure, recall their representa- 
tives, and send others in their places, precisely as any 
sovereign may recall his minister at a foreign court. 



ITS TRUE NATURE AND CHARACTER. 113 

The members voted in Congress by States, each State 
having one vote, whatever might be the number of its 
representatives. There was no President, or other 
common executive head. The States alone, as to all 
the more important operations of the government, 
were relied on to execute the resolves of Congress. 
In all this, and in other features of the confederation, 
which it is unnecessary to enumerate, we recognize a 
league between independent sovereignties, and not one 
nation composed of all of them together. It would 
seem to follow, as a necessary consequence, that if the 
States, thus united together by league, did not form 
one nation, there could not be a citizen or subject of 
that nation. Indeed, Congress had no power to make 
such citizen, either by naturalization or otherwise. It is 
true, the citizens of every State were entitled, with cer- 
tain exceptions, such as paupers, vagabonds, &c, to all 
the privileges of citizens of every other State, when 
within the territories thereof ; but this was by express 
compact in the Articles of Confederation, and did not 
otherwise result from the nature of their political con- 
nection. It was only by virtue of citizenship in some 
particular State, that its citizens could enjoy within 
any other State the rights of citizens thereof. They 
were not known as citizens of the United States, in the 
legislation either of Congress or of the several States. 
He who ceased to be a citizen of some particular 
State, without becoming a citizen of some other par- 
ticular State, forfeited all the rights of a citizen in 
each and all of the States. There was no one right 



114 THE FEDERAL GOVERNMENT : 

which the citizen could exercise, and no one duty 
which he could be called on to perform, except as a 
citizen of some particular State. In that character 
alone could he own real estate, vote at elections, sue 
or be sued ; and in that character alone could he be 
called on to bear arms, or to pay taxes. 

What, then, was this citizenship of the United 
States, which involved no allegiance, conferred no 
right and subjected to no duty ? Who were " the peo- 
ple of the United States ?" Where was their domicil, 
and what were the political relations which they bore 
to one another? What was their sovereignty, and 
what was the nature of the allegiance which it claim- 
ed ? Whenever these questions shall be satisfactorily 
answered, designating the people of the several States, 
distinctively as such, I shall feel myself in possession of 
new and unexpected lights upon the subject. 

Even, however, if we concede that there was such 
a people as "the people of the United States," our 
author's position is still untenable. I admit that the 
people of any country may, if they choose, alter, 
amend or abrogate their form of government, or es- 
tablish a new one, without invoking the aid of their 
constituted authorities. They may do this, simply be- 
cause the/have the physical power to do it, and not 
because such a proceeding would be either wise, just, 
or expedient. It would be revolution in the strictest 
sense of the term. Be this as it may, no one ever 
supposed that this course was pursued in the case 
under consideration. Every measure, both for the call- 



ITS TRUE NATURE AND CHARACTER. 115 

ing of the convention and for the ratification of the 
Constitution, was adopted in strict conformity with 
the recommendations, resolutions and laws of Con- 
gress and the State legislatures. And as " the people 
of the United States " did not, in point of fact, take 
the subject into their own hands, independent of the 
constituted authorities, they could not do it by any 
agency of those authorities. So far as the Federal 
Government was concerned, the Articles of Confeder- 
ation, from which alone it derived its power, contain- 
ed no provision by which " the people of the United 
States " could express authoritativeiy a joint and com- 
mon purpose to change their government. A law of 
Congress authorizing them to do so, would have been 
void, for want of right in that body to pass it. No 
mode, which Congress might have prescribed for as- 
certaining the will of the people upon the subject, 
could have had that sanction of legal authority, which 
would have been absolutely necessary to give it force 
and effect. It is equally clear that there was no right 
or power reserved to the States themselves, by virtue 
of which any such authoritative expression of the 
common will and purpose of all the States could have 
been made. The power and jurisdiction of each State 
was limited to its own territory ; it had no power to 
legislate for the people of any other State. No single 
State, therefore, could have effected such an object ; 
and if they had all concurred in it, each acting, as it 
was only authorized to act, for itself, that would have 
been strictly the action of the States as such, and as 



116 THE FEDERAL GOVERNMENT : 

contradistinguished from the action of the mass of the 
people of all the States. If " the people of the United 
States " could not, by any aid to be derived from their 
common government, have effected such a change in 
their Constitution, that government itself was equally 
destitute of all power to do so. The only clause in 
the Articles of the Confederation, touching this sub- 
ject, is in the following words : 

" And the Articles of this Confederation shall be 
inviolably observed by every State, and the Union 
shall be perpetual ; nor shall any alteration, at any 
time hereafter, be made in any of them, unless such 
alteration be agreed to in Congress of the United 
States, and be afterwards confirmed by the legislature of 
every State." 

Even if this power had been given to Congress 
alone, without subjecting the exercise of it to the 
negative of the States, it would still have been the 
power of the States in their separate and independent 
capacities, and not the power of the people of the 
United States, as contradistinguished from them. For 
Congress was, as we have already remarked, strictly 
the representative of the States ; and each State, be- 
ing entitled to one vote, and one only, was precisely 
equal, in the deliberation of that body, to each other 
State. Nothing less, therefore, than a majority of the 
States could have carried the measure in question, even 
in Congress. But, surely there could be no doubt that 
the power to change their common government was 
reserved to the States alone, when we see it expressly 



ITS TRUE NATURE AND CHARACTER. 117 

provided that nothing less than their unanimous con- 
sent, as States, should be sufficient to effect that ob- 
ject. 

There is yet another view of this subject. It re- 
sults from the nature of all government, freely and 
voluntarily established, that there is no power to 
change, except the power which formed it. It will 
scarcely be denied by any one, that the confederation 
was a government strictly of the States, formed by 
them as such, and deriving all its powers from their 
consent and agreement. What authority was there, 
superior to the States, which could undo their work ? 
What power was there, other than the States them- 
selves, which was authorized to declare that their 
solemn league and agreement should be abrogated? 
Could a majority of the people of all the States have 
done it ? If so, whence did they derive that right ? 
Certainly not from any agreement among the States, 
or the people of all the States ; and it could not be 
legitimately derived from any other source. If, there- 
fore, they had exercised such a power, it would have 
been a plain act of usurpation and violence. Besides, 
If we may judge from the apportionment of repre- 
sentation as proposed in the convention, a majority of 
the people of all the States were to be found in the 
four States of Massachusetts, New York, Pennsylvania 
and Virginia ; so that, upon this idea, the people of 
less than one-third of all the States could change the 
Abides of Confederation, although those articles ex- 
pressly provided that they should not be changed 



V 



118 THE FEDERAL GOVERNMENT : 

without the consent of all the States ! There was then 
no power superior to the power of the Spates ; and, 
consequently, there was no power which could alter or 
abolish the government which they had established. 
If the Constitution has su23erceded the Articles of 
Confederation, it is because the parties to those arti- 
cles have agreed that it should be so. If they have 
not so agreed, there is no such Constitution, and the 
Articles of Confederation are still the only political tie 
among the States. We need not, however, look be" 
yond the attestation of the Constitution itself, for full 
evidence upon this point. It professes to have been 
" done by the unanimous consent of the States present, 
etc.," and not in the name or by the authority of " the 
people of the United States." 

But it is not the mere framing of a constitution 
which gives it authority as such. It becomes obliga- 
tory only by its adoption and ratification ; and surely 
that act, I speak of free and voluntary government, 
makes it the constitution of those only who do adopt 
it. Let us ascertain, then, from the authentic history 
of the times, by whom our own Constitution was 
adopted and ratified. 

The resolution of Congress already quoted, contem- 
plates a convention " for the sole and express purpose 
of revising the Articles of Confederation," and re- 
porting suitable " alterations and provisions therein." 
The proceedings of the convention were to be report- 
ed to Congress and the several legislatures, and were 
to become obligatory, o^y when " agreed to in Con- 



ITS TRUE NATURE AND CHARACTER. 119 

gress and confirmed by the States." This is precisely 
the course of proceeding prescribed in the Articles of 
Confederation. Accordingly, the new Constitution 
was submitted to Congress ; was by them approved 
and agreed to, and was afterwards, in pursuance of 
the recommendation of the convention, laid before 
conventions of the several States, and by them ratified 
and adopted. In this proceeding, each State acted for 
itself, without reference to any other State. They 
ratified at different periods ; some of them uncon- 
ditionally, and others with provisos and propositions 
for amendment. This was certainly State action, in as 
distinct a form as can well be imagined. Indeed, it 
may well be doubted whether any other form of rati- 
fication, than by the States themselves, would have 
been valid. At all events, none other was contem- 
plated, since the Constitution itself provides, that it 
shall become obligatory, when ratified by "nine 
States," between the States ratifying the same. " The 
people of the United States," as an aggregate mass, 
are no where appealed to, for authority and sanction 
to that instrument. Even if they could have made it 
their Constitution, by adopting it, they could not, be- 
ing as they were separate and distinct political com- 
munities, have united themselves into one mass for 
that purpose, without previously overthrowing their 
own municipal governments ; and, even then, the new 
Constitution would have been obligatory only on those 
who agreed to and adopted it, and not on the rest. 
The distinction between the people of the several 



120 THE FEDERAL GOVERNMENT J 

States and the people of the United States, as it is to 
be understood in reference to the present subject, is 
perfectly plain. I have already explained the terms 
" a people," when used in a political sense. The dis- 
tinction of which I speak may be illustrated by a sin- 
gle example. If the Constitution had been made by 
"the people of the United States," a certain portion 
of those people would have had authority to adopt it. 
In the absence of all express provision to the contrary, 
we may concede that a majority would, prima facie, 
have had that right. Did that majority, in fact, adopt 
it ? Was it ever ascertained whether a majority of the 
whole people were in favor of it or not ? Was there any 
provision, either of law or constitution, by which it 
was possible to ascertain that fact? It is perfectly 
well known that there was no such provision ; that no 
such majority was ever ascertained, or even contem- 
plated. Let us suppose that the people of the States 
of Massachusetts, New York, Pennsylvania and Vir- 
ginia, containing, as we have seen they probably did, a 
majority of the whole people, had been unanimous 
against the Constitution, and that a bare majority of 
the people, in each of the other nine States, acting in 
their separate character as Sta'es, had adopted and 
ratified it. There can be no doubt, that it would have 
become the Constitution of the United States ; and 
that, too, by the suffrages of a decided minority, prob- 
ably not exceeding one-fourth of the aggregate people 
of all the States. This single example shows, conclu- 
sively, that the people of the United States, as contra- 



ITS TKUE NATURE AND CHARACTER. 121 

dis'ioguished from the people of the several States, 
had nothing to do, and could not have any thing to do 
with the matter. 

This brief history of the formation and adoption of 
the Constitution, which is familiar to the mind of every 
one who has attended to the subject at all, ought, as it 
seems to me, to be perfectly satisfactory and conclu- 
sive, and should silence for ever all those arguments 
in favor of consolidation, which are founded on the 
preamble to that instrument. I do not perceive with 
what propriety it can be said, that the " people of the 
United States " formed the Constitution, since they 
neither appointed the convention, nor ratified their 
act, nor otherwise adopted it as obligatory upon them. 
Even if the preamble be entitled to all the influence 
which has been allowed to it, Judge Story's construc- 
tion of its language is not, as has already been re- 
marked, the only one of which it is susceptible. " We, 
the people of the United States," may, without any 
violence to the rules of fair construction, mean " we, 
the people of the States united." In this acceptation, 
its terms conform to the history of the preamble itself, 
to that of the whole Constitution, and those who made 
it. In any other acceptation, they are either without 
meaning, or else they affirm what history proves to Tbe 
false.* 



* The phrase, " We, the people oe the United States," iu the pream- 
ble to the Constitution, relied upon by the friends of the monarchist princi- 
ples of government, to prove the consolidated nature of the Federal Union, 



122 THE FEDERAL GOVERNMENT ! 

It would not, perhaps, have been deemed necessary 
to bestow quite as much attention on this part of the 
work, if it were not evident that the author himself 
considered it of great consequence, not as matter of 
history, but as warranting and controlling his con- 
struction of the Constitution, in some of its most im- 



has been twisted into most absurd shapes. The phrase Is, we, the people 
of the States, not the people of America. The very phrase shows the 
Federal Union to be a government of States, and not of the people of all 
America, as a consolidated body. "United States" has a very different 
legal signification to that of consolidated States. "The people of the 
United States," in the preamble of the Constitution, has the same meaning 
as " the people of the several States," in the second section of Article 
First of the same instrument. The idea of severalty or separateness, 
and not that of consolidation, is clearly implied. Indeed, this is the gram- 
matical meaning of the phrase. The qualifying adjective " united " is an- 
nexed to the word States, and not to the word "people." It is precisely 
the same meaning as the phrase " Les Etas Unis " in the French language, 
i. e., the " States united." When Patrick Henry indignantly asked, " What 
right had the framers of the Constitution to say, * We, the people,' instead 
of * we, the States V " Mr. Madison replied: " Who are the parties to the gov- 
ernment? The people ; but then not the people as composing one great 
body ; but the people as composing thirteen sovereignties." The Con- 
stitution of the United States is a grant by .grantors to a grantee. The 
grantors are the " several States," not as a consolidated people, but as 
separate and independent sovereignties— " the people " as organized into 

11 several " distinct sovereign communities. Thus the Supreme Court of the 
United States declares that : " The States form a confederated government ; 
yet the several States retain their individual sovereignties, and with respect 
to their municipal regulations, are to each other sovereign." (2 Peters, 590 ; 

12 Wheaton, 334.) Again : " The powers retained by the States proceed not 
from the people of America, but from the people of the several States, 
and remain after the adoption of the Constitution what they were before." 
(4 Wheaton, 193, 17, 54 ; 203, 9.) Thus all authority proves that the Govern- 
ment of the Union is one of the States united, and not of the People 
consolidated.— [C. C. B. 



ITS TRUE NATURE AND CHARACTER. 123 

porfcant provisions. The argument is not yet exhaust- 
ed, and I am aware that much of what I have said is 
trite, and that little, perhaps no part of it, is new. 
Indeed, the subject has been so often and so ably 
discussed, particularly in parliamentary debates, that 
it admits very few new views, and still fewer new 
arguments in support of old views. It is still, how- 
ever, an open question, and there is nothing in the 
present condition of public opinion to deprive it of 
any portion of its original importance. The idea that 
the people of these States were, while colonists, and, 
consequently, are now, "one people/' in some sense 
which has never been explained, and to some extent 
which has never been denned, is constantly inculcated 
by those who are anxious to consolidate all the pow- 
ers of the States in the Federal Government. It is 
remarkable, however, that scarcely one systematic 
argument, and very few attempts of any sort, have yet 
been made to prove this important position. Even the 
vast and clear mind of the late Chief Justice of the 
United States, which never failed to disembarrass and 
elucidate the most obscure and intricate subject, ap- 
pears to have shrunk from this. In all his judicial 
opinions in which the question has been presented, 
the unity or identity of the people of the United 
States has been taken as a postulatum, without one 
serious attempt to prove it. The continued repetition 
of this idea, and the boldness with which it is ad- 
vanced, have, I am induced to think, given it an 
undue credit with the public. Few men, far too few, 



124 THE FEDERAL GOVERNMENT : 

inquire narrowly into the subject, and even those who 
do, are not in general skeptical enough to doubt what 
is so often and so peremptorily asserted ; and asserted, 
too, with that sort of hardy confidence which seems to 
say, that all argument to prove it true would be super- 
erogatory and useless. It is not, therefore, out of 
place, nor out of time, to refresh the memory of the 
reader, in regard to those well established historical 
facts, wlrch are sufficient in themselves to prove that 
the foundation on which the consolidationists build 
their theory, is unsubstantial and fallacious. 

I would not be understood as contending, in what I 
have already said, that the Constitution is necessarily 
federative, merely because it was made by the States 
as such, and not by the aggregate people of the United 
States. I readily admit, that although the previous 
system was strictly federative, and could not have been 
changed except by the States who made it, yet there 
was nothing to prevent the States from surrendering, 
in the provisions of the new system which they adopt- 
ed, all their power, and even their separate existence, 
if they chose to do so. The true inquiry is, therefore, 
whether they have in fact done so or not ; or, in other 
words, what is the true character, in this respect, of 
the present Constitution. In this inquiry, the history 
of their previous condition, and of the Constitution 
itself, is highly influential and important. 

The author, carrying out the idea of a unity between 
the people of the United States, which, in the previous 
part of his work, he had treated as a postulatum, very 



ITS TRUE NATURE AND CHARACTER. 125 

naturally, and indeed necessarily, concludes that the 
Constitution is not a compact among sovereign States. 
He contends that it is " not a contract imposing mu- 
tual obligations, and contemplating the permanent 
subsistence of parties having an independent right to 
construe, control, and judge of its obligations. If in 
this latter sense, it is to be deemed a compact, it must 
be, either because it contains, on its face, stipulations 
to that effect, or because it is necessarily implied, 
from the nature and objects of a frafme of govern- 
ment." 

There is a wafct of appositeness and accuracy in the 
first sentence of this extract, which renders it some- 
what difficult to determine whether the author designed 
it as a single proposition, or as a series of independent 
propositions. If the first, there is not one person in 
the United States, it is presumed, who would venture 
to differ from him. I confess, however, I do not very 
clearly discern what bearing it has on the question he 
was examining. It involves no point of difference be- 
tween political parties, nor does it propound any 
question which has heretofore been contested, or 
which may be expected to arise hereafter, touching 
the true nature of the Constitution. If he designed 
a series of propositions, then the two first are so obvi- 
ously false, that Judge Story himself would not ven- 
ture to maintain them, and the last is so obviously 
true, that no one would dream of denying it. For ex- 
ample : he can scarcely mean to say that our govern- 
ment is not a " contract," whether made by the States 



126 THE FEDERAL GOVERNMENT : 

as such, or by " the people of the United States ;" and 
it is perfectly clear that it " contemplates the perma- 
nent subsistence of the parties to it," whoever those 
parties may be. These two propositions, therefore, 
taken distinctly, are not true in themselves, and 
neither of them was necessary, as qualifying or form- 
ing a part of the third. And, as to the third, it is not 
easy to see why he announced it, since it never en- 
tered into the conception of any one, that the parties 
to the Constitution had " an independent right," as a 
general right, " to construe, control or judge of its 
obligations." We all admit that the power and au- 
thority of the Federal Government, within its consti- 
tutional sphere, are superior to those of the States, in 
some instances, and co-ordinate in others, and that 
every citizen is under an absolute obligation to render 
them respect and obedience : and this simply because 
his own State, by the act of ratifying the Constitution^ 
has commanded him to do so. We all admit it to be 
true, as a general proposition, that no citizen nor 
State has an independent right to " construe," and still 
less to " control," the constitutional obligations of that 
government, and that neither a citizen nor a State can 
"judge," that is, decide, on the nature and extent of 
those obligations, with a view to control them. All 
that was ever contended for is, that a State has a right 
to judge of its own obligations, and, consequently, to 
judge of those of the Federal Government, so far as 
they relate to such State itself, and no farther. It is 
admitted on all hands, that when the Federal Govern- 



ITS TRUE NATURE AND CHARACTER. 127 

ment transcends its constitutional power, and when, of 
course, it is not acting within its " obligations," the 
parties to that government, whoever they may be, are 
no longer under any duty to resjDect or obey it. This 
has been repeatedly affirmed by our courts, both State 
and federal, and has never been denied by any class of 
politicians. Who, then, is to determine whether it has 
so transcended its constitutional obligations or not ? 
It is admitted that, to a certain extent, the Supreme 
Court is the proper tribunal in the last resort, because 
the States, in establishing that tribunal, have express- 
ly agreed to make it so. The jurisdiction of the 
federal courts extends to certain cases, affecting the 
rights of the individual citizens, and to certain others 
affecting those of the individual States. So far as the 
Federal Government is authorized to act on the indi- 
vidual citizen, the powers of the one and the rights of 
the other, are properly determinable by the federal 
courts. And the decision is binding too, and abso- 
lutely final, so far as the relation of the citizen to the 
Federal Government is concerned. There is not, within 
that system, any tribunal of appeal, from the decisions 
of the Supreme Court. And so also of those cases in 
which the rights of the States are referred to the fed- 
eral tribunals. In this sense, and to this extent, it is 
strictly true that the parties have not " an independent 
right to construe, control and judge of the obliga- 
tions " of the Federal Government, but they are 
bound by the decisions of the federal courts, so far as 
they have authorized and agreed to submit to them. 



128 THE FEDERAL GOVEKNMENT I 

But there are many cases involving the question of 
federal power which are not cognizable before the 
federal courts ; and, of course, as to these, we must 
look out for some other umpire. It is precisely in this 
case that the question, who are the parties to the Con- 
stitution, becomes all important and controlling. If 
the States are parties as sovereign States, then it fol- 
lows, as a necessary consequence, that each of them 
has the right which belongs to every sovereignty, to 
construe its own contracts and agreements, and to de- 
cide upon its own rights and powers. I shall take oc- 
casion, in a subsequent part of this review, to enter 
more fully into the question, who is the common um- 
pire ? The statement here given, of the leading point 
of difference between the great political parties of the 
country, is designed only to show that the author's 
proposition does not involve it. That proposition may 
mislead the judgment of the reader, but cannot possi- 
bly enlighten it, in regard to the true nature of the 
Constitution. 

He has been scarcely less unfortunate in the next 
proposition. Taking his words in their most enlarged 
sense, he is probably correct in his idea, though he is 
not accurate in his language ; but in the sense in 
which his own reasoning shows that he himself under- 
stands them, his proposition is wholly untenable. If, 
by the words " stipulations to that effect," he means 
simply that the effect must necessarily result from the 
provisions of the Constitution, he has merely asserted 
a truism which no one will dispute with him. Cer- 



ITS TKUE NATURE AND CHARACTER. 129 

taiiiiy, if it does not result from the nature of all gov- 
ernment, that it is a compact, and if there be nothing 
in oar Constitution to show that it is so, then it is not 
a compact. His own reasoning, however, shows that 
he means by the word "stipulations," something in 
the nature of express agreement or declaration ; and, 
in that sense, the proposition is obviously untrue, and 
altogether defective as a statement for argument. It 
is very possible that our Constitution may be a com- 
pact, even though it contain no express agreement or 
declaration so denominating it, and though it may not 
" result from the nature and objects of a frame of gov- 
ernment/' that it is so ; and this simply because it may 
"result from the nature and objects of our govern- 
ment " that it is a compact, whether such be the result 
of other governments or not. If the author designed 
to take this view of the subject, the examination which 
he has given of the Constitution, in reference to it, is 
scarcely as extended and philosophical as we had a 
right to expect from him. He has not even alluded 
to the frame and structure of the government in its 
several departments, nor presented any such analy- 
sis of it in any respect, as to enable the reader 
to form any satisfactory conclusion as to its true 
character in the particular under consideration. 
Everything which he has urged as argument to prove 
his proposition, may well be true, and every sentence 
of the Constitution which he has cited for that pur- 
pose, may be allowed its full effect, and yet our gov- 



130 THE FEDERAL GOVERNMENT : 

ernment may be a compact, even in the strictest sense 
in which he has understood the term. 

His first argument is, that the "United States 
were no strangers to compacts of this nature," and 
that those who ratified the Constitution, if they had 
meant it as a compact, would have used " appropriate 
terms 39 to convey that idea. I have already shown 
that if he means by this, that the Constitution would 
have contained some express declaration to that ef- 
fect, he is altogether inaccurate. He himself knows, 
as a judge, that a deed, or other instrument, receives 
its distinctive character, not from the name which the 
/ parties may choose to give it, but from its legal effect 
and operation. The same rule applies to constitutions. 
Ours is a compact or not, precisely as its provisions 
make it so, or otherwise. The question, who are the 
parties to it, may influence, and ought to influence, 
the construction of it in this respect ; and I propose 
presently to show, from this and other views of it, 
that it is, in its nature, " a mere confederation/' and 
not a consolidated government, in any one respect. 
It does, therefore, contain " appropriate terms," if we 
take those words in an enlarged sense, to convey the 
idea of a compact. 

Our author supposes, however, that a " conclusive " 
argument upon this subject is furnished by that clause 
of the Constitution which declares that : "This Con- 
stitution, and the laws of the United States, which 
shall be made in pursuance thereof, and all treaties 
made, or which shall be made, under the authority of 



ITS TRUE NATURE AND CHARACTER. 181 

the United States, shall be the supreme law of the 
land ; and the judges in every State shall be bound 
thereby, anything in the Constitution or laws of 
any State to the contrary notwithstanding/' Hence 
he concludes that the " people of any State cannot, by 
any form of its own Constitution or laws, or other pro- 
ceedings, repeal or abrogate, or suspend it." 

Here, again, Judge Story displays a want of proper 
defmiteness and precision, in the statement of his 
proposition. The people who make a law, can, upon 
the principles of all our institutions, either "repeal 
or abrogate, or suspend it ;" and if, as he supposes, 
our Constitution was made by " the people of the 
United States," in the aggregate, then " the people of 
any State," or of half a State, may repeal, or abrogate, 
or suspend it, if they happen to be a majority of 
the whole. The argument, therefore, if we are to take 
it in the full latitude in which it is laid down, is not 
sound, upon the author's own principles ; and it can 
avail nothing, except upon the very supposition which 
he disallows, to wit : that the Constitution was formed 
by the States, and not by the people of the United 
States. Even in this acceptation, however, I am at a 
loss to perceive how it establishes the proposition with 
which he set out, to wit : that the Constitution is not 
a compact. Certainly it is very possible so to frame a 
compact, that no party to it shall have a right either 
to " repeal or abrogate, or suspend it ;*' and if it be 
possible to do so, then the mere absence of such right 
does not even tend to disprove the existence of com- 



132 THE FEDERAL GOVERNMENT : 

pact. Our own Constitution, even in the opinion of 
those who are supposed by the author to be least 
friendly to it, is a compact of precisely this nature. 
The Nullifier contends only for the right of a State to 
prevent the Constitution from being violated by the gen- 
eral government, and not for the right either to repeal, 
abrogate or suspend it. The Seceder asserts only 
that a State is competent to withdraw from the Union 
whenever it pleases ; but does not assert that in so 
doing it can repeal, or abrogate or suspend the Con- 
stitution, as to the other States. Secession would, 
indeed, utterly destroy the compact as to the seceding 
party ; but would not necessarily affect its obligation 
as to the rest. If it would, then the rest would have 
no right to coerce the seceding State, nor to place her 
in the attitude of an enemy. It is certain, I think, 
they would not have such right ; but those who assert 
that they would — and the author is among the num- 
ber — must either abandon that idea, or they must ad- 
mit that the act of secession does not break up the 
Constitution, except as to the seceding State. For the 
moment the Constitution is destroyed, all the authori- 
ties which it has established cease to-exist. There is 
no longer such a government as that of the United 
States, and, of course, they cannot, as such, either 
make any demand, or assert any right, or enforce any 
claim. 

The conclusion, however, to which our author has 
arrived upon this point, is not that to which he orig- 
inally designed that his premises should conduct him. 



ITS TRUE NATURE AND CHARACTER. 133 

The question of the right of a party to a compact to 
repeal or abrogate or suspend it, does not enter into his 
original proposition, nor result from the argument 
which he had immediately before used to sustain it. The 
proposition is, that our Constitution is not a compact, 
and the argument is, that it is not a compact, because 
it is a supreme law. The same idea is substantially 
reaffirmed, in the next argument by which he proposes 
to prove the main proposition. "The design 5 ' (of 
the Constitution) "is to establish a government. 
This, of itself, imports legal obligation, permanence, 
and uncontrollability by any, but the authorities au- 
thorized to alter or abolish it." 

Admitting, as I cheerfully do, that all this is strictly 
true, I am yet unable to perceive how it demonstrates 
that our Constitution is not a compact. May not a 
compact between sovereign States be a government ? 
Is there any such necessary restraint upon, or incident 
of, sovereign power, that it cannot, in any possible 
exercise of it, produce such a result ? If there is, then 
it was incumbent on the author to show it, because, if 
there is not, his argument is of no force ; and he him- 
self will admit that the proposition, to say the least 
of it, is not quite clear enough to be taken as a postu- 
late. His own historical information, if he had drawn 
on its ample funds, must have furnished him with 
numerous instances of governments established by 
compact. He need not, however, have gone beyond 
our own Confederation, which, although a compact 
among sovereign States, in the strictest sense, was yet 



134 THE FEDERAL GOVERNMENT : 

treated as a government by the people at home, and 
recognized as such by all foreign powers. It was 
also " supreme," within its prescribed sphere of action ; 
its rights and powers over the most important subjects 
of general concern were not only superior to those of 
the States, but were exclusive. The author's proposi- 
tion and argument, reduced to their simple terms, may 
be thus stated : " Oar Constitution is not a compact, 
because it is a government, and because that govern- 
ment is the supreme law."* There are few minds, I 
think, prepared to embrace this, conclusion, or to dis- 



* This assertion of Judge Story is contradicted, not only by the organiza- 
tion of the government, but by trie uniform language of those who framed 
and adopted it. Both Hamilton and Madison constantly spoke of the Union 
as a " compact." In the Eighty-fifth Article of the Federalist, Hamilton 
calls the Constitution a " compact," and says that thirteen independent 
States are " the parties to the compact." Madison says : "It is a compact 
between thirteen sovereignties." In the Resolutions of 1793 he says : " The 
powers of the Federal Government result from a compact to which the 
States are parties." Again says Madison : " In case of a deliberate, palpa- 
ble, and dangerous exercise of other powers not granted in the compact, 
the States who are parties thereto have the right, and are in duty bound to 
interpose." In the Convention of Massachusetts which adopted the Consti- 
tution, Judge Parsons said : "The government and powers which the Con- 
gress can administer are the mere result of a compact." Washington per- 
petually spoke of the ratification of the Constitution as acceding to a com- 
pact. (See letter to Bushrod Washington, Nov. 10, 1787 ; to General Knox, 
June 17, 1788 ; to John Jay, July 20, 17S8 ; to Gouverneur Morris, December 
8, 1789.) Jefferson, in the Kentucky Resolutions, says : " The States are not 
united on the principle of unlimited submission to the General Government, 
but by that of compact," &c. Mr. Webster, in his great speech to the young 
men cf Albany, 1351, called the Constitution a "a compact." Thus it is 
certain that the framers of the Constitution thought they were making a 
"compact between sovereign States." And the intention of the framers 
and parties to an instrument is the law in the case.— [C. C. B. 



ITS TKUE NATURE AND CHARACTER. 135 

cern the connection which it has with the premises. 
There are still fewer who will not feel surprise, that our 
author should have formed such a conclusion, since an 
instance to disprove it, furnished by the history of his 
own country, and existing in his own times, had but 
just passed under his critical examination and review. 
The remaining arguments upon this point are 
merely inferences drawn from the absence of express 
words in the Constitution, or from the opinions of 
members of the various conventions, expressed in the 
debates concerning it. These have already been suf- 
ficiently examined. Taking his whole chapter upon 
this subject together, the reader will probably think 
that it does not answer the expectations which the 
public have formed upon the author's powers as a 
reasoner. His political opponents will be apt to think, 
also, that he has done something less than justice to 
them, in the view which he has given of their princi- 
ples. After laboring, in the way we have seen, to 
prove that our Constitution is not a compact, he in- 
forms us that " the cardinal conclusion for which this 
doctrine of a compact has been, with so much ingenu- 
ity and ability, forced into the language of the Con- 
stitution, (for the latter no where alludes to it,) is 
avowedly to establish that, in construing the Consti- 
tution, there is no common umpire ; but that each 
State, nay, each department of the government of 
each State, is the supreme judge for itself, of the pow- 
ers and rights and duties arising under that instru- 
ment." 



136 THE FEDERAL GOVERNMENT : 

Judge Story must excuse me — I mean no disrespect 
to him — if I express my unfeigned astonishment that 
he should have admitted this passage into a grave and 
deliberate work on the Constitution. He must, indeed, 
have been a most careless observer of passing events, 
and a still more careless reader of the publications of 
the last ten years, upon this very point, if he has found 
either in the one or the other, the slightest authority 
for the opinion which is here advanced. The most 
ultra of those who have contended for the rights of 
the States have asserted no huch doctrine as he has im- 
puted to them. Neither is it the necessary or legiti- 
mate consequence of any principle which they have 
avowed. I cannot impute to an author of his ac- 
knowledged ability, the weakness of stating a propo- 
sition merely for the sake of the poor triumph of re- 
futing it. With what other motive, then, did he make 
a statement which is unsupported, as a matter of fact, 
which involves no disputed or doubted question of con- 
stitutional law, and which attributes to a large class of 
his fellow-citizens opinions which would justly expose 
them to the scorn of all correct thinkers ? That class 
profess to hold, in their utmost latitude and in their 
strictest applications, the doctrines of the State Rights' 
school of politics. They believe that those doctrines 
contain the only principle truly conservative of our 
Constitution ; that without them there is no effective 
check upon the Federal Government, and, of course, 
that that government can increase its own powers to 
an indefinite extent ; that this must happen in the 



ITS TRUE NATURE AND CHARACTER. 137 

natural course of events, and that, ultimately, the 
whole character of our government will be so changed, 
that even its forms will be rejected, as cumbrous and 
useless, under the monarchy, in substance, into which 
we shall have insensibly glided. It is, therefore, be- 
cause they are lovers of the Constitution and of the 
Union, that they contend strenuously for the rights of 
the States. They are no lovers of anarchy nor of re- 
volution. Their principles will cease to be dear to 
them, whenever they shall cease to subserve the pur- 
poses of good order, and of regular and established 
government. It is their object to preserve the institu- 
tions of the country as they are, sincerely believing 
that nothing more than this is necessary to secure to 
the people all the blessings which can be expected 
from any government whatever. They would con- 
sider themselves but little entitled to respect as a 
political party, if they maintained the loose, disjointed, 
and worse than puerile notions, which the author has 
not thought it improper to impute to them. 

It is the peculiar misfortune of the political party 
to which I have alluded, to be misunderstood and 
misrepresented in their doctrines. The passage above 
quoted affords not the least striking instance of this. 
It is a great mistake to suppose that they have ever 
contended that the right of State interposition was 
given in the express terms of the Constitution ; and, 
therefore, they have not "forced this principle into 
the language of that instrument." The right in ques- 
tion is supposed to belong to the States, only because 



138 THE FEDERAL GOVERNMENT : 

it is an incident of their sovereignty, which the Constitu- 
tion has not taken away. The author, it is presumed, 
could scarcely have failed to perceive the difference of 
the two propositions, nor could he have been uncon- 
scious that they did not depend upon the same course 
of investigation or reasoning. And it is not true, so 
far as my information extends, that any political party 
has ever asserted, as a general proposition, that in con- 
struing the Constitution, there is no common umpire. 
Cases have already been stated, in which the Supreme 
Court is universally admitted to be the common um- 
pire, and others will be stated when we come more 
directly to that part of our subject. In the broad 
sense, then, in which the author lays down the propo- 
sition, it has never been contended for by any politi- 
cal party whatever. Neither is it true, as he is pleased 
to assert, that any political party has ever supposed 
that " each department of the government of each 
State " had a right to " judge for itself, of the powers, 
rights and duties, arising under" the Constitution. 
By the word " judge," he must be understood to' mean 
decide finally ; and, in this sense, I venture to affirm, 
that no political party, nor political partizan, even in 
the wildest dream of political phrensy, has ever enter- 
tained the absurd notion here attributed to them. It 
is difficult to suppose that the author could have been 
uninformed of the fact, that nothing short of the 
power of all the State, acting through its own consti- 
tuted authorities, has ever been deemed of the least 
force in this matter. The better and more prevalent 



ITS TRUE NATURE AND CHARACTER. 139 

opinion is, that a State cannot properly go act, except 
by a convention called for that express purpose. This 
was the course pursued by South Carolina ; but in the 
case of the Alien and Sedition Laws, Virginia acted 
through her ordinary legislature. As to this matter, 
however, the legislature was very properly considered 
as representing the power of the whole State. 

Thus, in the short paragraph above quoted, Judge 
Story has fallen into three most remarkable errors, 
proving that he has, in the strangest way imaginable, 
misunderstood the principles which he attempted to 
explain. The young and plastic minds to which he 
addressed himself, with the professed object of in- 
structing them in the truths of constitutional interpre- 
tation, will look in vain for the publication or other 
authority which sustains him. And the political party 
whose principles he has endeavored to hold up to re- 
proach, has a right to demand of him why he has 
chosen to attribute to them absurd and revolutionary 
notions, unworthy alike of their patriotism and their 
reason. 

It is submitted to the reader's judgment to deter- 
mine how far the reasoning of the author, which we 
have just examined, supports his position that our 
Constitution is not a compact. The opinion of that 
Congress which recommended the call of the Conven- 
tion seems to have been very different ; they, at least, 
did not suppose that a compact could not be a govern- 
ment. Their resolution recommends the call of a con- 
vention, for the purpose of " revising the Articles of 



140 THE FEDERAL GOVERNMENT : 

Confederation, and reporting such alterations and 
provisions therein, as would render the Federal Con- 
stitution adequate to the exigencies of government, 
and the preservation of the Union." In the opinion 
of Congress, the Articles of Confederation, which 
were clearly a compact, were an inadequate Constitu- 
tion, and, therefore, they recommended such altera- 
tions and provisions therein, as would make the same 
compact an adequate Constitution. Nothing is said 
about forming a new government, or changing the 
essential character of the existing one ; and, in fact, 
no such thing was contemplated at the time.* " The 
sole and exclusive purpose " of the convention was so 
to amend, or add to, the provisions of the Articles of 
Confederation, as would form " a more perfect union/' 
&c, upon the principles of the Union already existing. 
It is clear, therefore, that in the opinion of Congress, 
and of all the States that adopted their recommenda- 
tion, that union or compact was a constitution of gov- 
ernment. 

It is worthy of remark, that of the States, New 
Hampshire, and the author's own State of Massachu- 
setts, expressly call the Constitution a compact, in 
their acts of ratification ; and no other State indicates 



* In the Constitutional Convention, Governor Patterson, of New Jersey 
said: "Let us consider withwh at powers we are sent here. The basis of 
our present authority is founded on a revision of the Articles of the present 
Confederation, and to alter and amend them in parts where they may ap- 
pear defective." The object was not to form a new government, but to 
44 alter and amend » that which alieady existed.— [C. C. B. 



ITS TRUE NATURE AND CHARACTER. 141 

a different view of it. This tends to prove that pub- 
lic opinion at the time had not drawn the nice distinc- 
tion which is now insisted on, between a government 
and a compact ; and that those who had for eight 
years been living under a compact, and forming trea- 
ties with foreign powers by virtue of its provisions, 
had never for a moment imagined that it was not a 
government. 

But little importance, however, ought to be attached 
to reasoning of this kind. Those who contend that 
our Constitution is a compact, very properly place 
their principles upon much higher ground. They say 
that the Constitution is a compact, because it teas made 
by sovereign States, and because that is the only mode in 
which sovereign States treat with one another. The con- 
clusion follows irresistibly from the premises ; and 
those who deny the one, are bound to disprove the 
other. Our adversaries begin to reason at the very 
point at which reasoning becomes no longer necessary 
Instead of disproving our premises, they assume that 
they are wrong, and then triumphantly deny our con- 
clusion also. If we establish that the Constitution 
was made by the States, and that they were, at the 
time, distinct, independent, and perfect sovereignties, 
it follows that they could not treat with one another, 
even with a view to the formation of a new common 
government, except in their several and sovereign 
characters. They must have maintained the same 
character when they entered upon that work, and 
throughout the whole progress of it. "Whatever the 



142 THE FEDEKAL GOVERNMENT ! 

government may be, therefore, in its essential charac- 
ter, whether a federative or a consolidated govern- 
ment, it is still a compact, or the result of a compact, 
because those who made it could not make it in any 
other way. In determining its essential character, 
therefore, we are bound to regard it as a compact, and 
to give it such a construction as is consistent with that 
idea. We are not to presume that the parties to it de- 
signed to change the character in which they nego- 
tiated with one another. Every fair and legitimate in- 
ference is otherwise. Its sovereignty is the very last 
thing which a nation is willing to surrender ; and 
nothing short of the clearest proof can warrant us in 
concluding that it has surrendered it. In all cases, 
therefore, where the language and spirit of the Con- 
stitution are doubtful, and even where their most 
natural construction would be in favor of consolida- 
tion, (if there be any such case,) we should still in- 
cline against it, and in favor of the rights of the 
States, unless no other construction can be admitted* 






ITS TRUE NATURE AND CHARACTER. 143 



CHAPTEE Villi 

THE UNION A FEDERATIVE AND NOT A NATIONAL GOVERN- 
MENT. 

Having disposed of this preliminary question, we 
now approach the Constitution itself. I affirm that it 
is, in its structure, a federative and not a consolidated 
government ; that it is so in all its departments, and 
in all its leading and distinguishing provisions ; and, 
of course, that it is to be so interpreted, by force of 
its own terms, apart from any influence to be derived 
from that rule of construction which has just been 
laid down. We will first examine it in the structure 
of its several departments.* 



* There was a party in the Constitutional Convention, which, though in 
the minority, was respectable for its intellect, which wanted to form a 
kational or consolidated government. From the opening of the Conven- 
tion in May, until the 25th of June, there had been a resolution that " A 
national government ought to be established." But on the last mentioned 
date it was moved to strike out the word " National," and insert in its place 
11 United States." This passed overwhelmingly in the affirmative, and thus 
ended the business of a national government. On this occasion Governor 
Patterson said : " Can we, on this ground, (of amending the Articles of 
Confederation,) form a national government ? I fancy not. Our commis- 
sions give no complexion to the business, and we cannot suppose that when 
we exceed the bounds of our duty, the people will approve our proceedings. 



144 THE FEDERAL GOVERNMENT . 

The Legislature. — This consists of two houses. The 
Senate is composed of two members from each State, 
chosen by its own legislature, whatever be its size or 
population, and is universally admitted to be strictly 
federative in its structure. The House of Bepresenta- 
tives consists of members chosen in each State, and is 
regulated in its numbers according to a prescribed 
ratio of representation. The number to which each 
State is entitled is proportioned to its own population, 
and not to the population of the United States ; and 
if there happen to be a surplus in any State less than 
the established ratio, the surplus is not added to the 
surplus or population of any other State, in order to 
make up the requisite number for a representative, but 
is wholly unrepresented. In the choice of representa- 
tives, each State votes by itself, and for its own repre- 
sentatives, and not in connection with any other State, 
nor for the representatives of any other State. Each 
State prescribes the qualifications of its own voters, 
the Constitution only providing that they shall have 



Wc are met here as llie deputies of thirteen independent sovereign States, 
for federal purposes. Can we consolidate their sovereignty, and form one 
nation, and annihilate the sovereignties of our States, who have sent us 
here for other purposes ? I declare that I never will consent to such a sys- 
tem. Myself or my State never will submit to tyranny or despotism. " 
Luther Martain said : " The General Government is only intended to protect 
and guard the rights of the States, as States. The basis of all ancient and 
modern confederacies is the freedom and the independency of the States 
composing them." Such were the ideas which prevailed in the framing and 
adoption of the Constitution. (See Elliot's Debates, Madison's and Mar- 
tain's Reports.)— IC. C. B. 



ITS TKUE NATURE AND CHARACTER. 145 

the qualifications which such State may have pre- 
scribed for the voters for the most numerous branch 
of its own legislature. And, as the right to vote is 
prescribed by the State, the duty of doing so cannot 
be enforced, except by the authority of the State. No 
one can be elected to represent any State, except a 
citizen thereof. Vacancies in the representation of 
any State are to be supplied under writs of election, 
issued by the Executive of such State. In all this, 
there is not one feature of nationality. The whole 
arrangement has reference to the States as such, and 
is carried into effect solely by their authority. The 
Federal Government has no agency in the choice of 
representatives, except only that it may prescribe the 
"times, places and manner of holding elections." It 
can neither prescribe the qualifications of the electors, 
nor impose any penalty upon them, for refusing to 
elect. The States alone can do these things ; and, of 
course, the very existence of the House of Representa- 
tives depends, as much as does that of the Senate, 
upon the action of the States. A State may withdraw 
its representation altogether, and Congress has no 
power to prevent it, nor to supply the vacancy thus 
created. If the House of Representatives were na- 
tional, in any practical sense of the term, the " nation " 
would have authority to provide for the appointment 
of its members, to prescribe the qualifications of 
voters, and to enforce the performance of that duty. 
All these things the State legislatures can do, within 
their respective States, and it is obvious that they are 



146 THE FEDERAL GOVERNMENT I 

strictly national. In order to make the House of 
[Representatives equally so, the people of the United 
States must be so consolidated that the Federal Gov- 
ernment may distribute them, without regard to State 
boundaries, into numbers according to the prescribed 
ratio ; so that oil the people may be represented, and 
no unrepresented surplus be left in any State. If 
these things could be done under the Federal Consti- 
tution, there would then be a strict analogy between 
the popular branches of the federal and State legisla- 
tures, and the former might, with propriety, be con- 
sidered "national. 5 ' But it is difficult to imagine a 
national legislature which does not exist under the 
authority of the nation, and over the very appointment 
of which the nation, as such, can exert no effective 
control. 

There are only two reasons which I have ever heard 
assigned for the opinion that the House of Bepresent- 
atives is national, and not federative. The first is, 
that its measures are carried by the votes of a majority 
of the whole number, and not by those of a majority of 
the States. It would be easy to demonstrate that this 
fact does not warrant such a conclusion ; but all rea- 
soning is unnecessary, since the conclusion is dis- 
proved by the example of the other branch of the 
federal legislature. The Senate, which is strictly 
federative, votes in the same way. The argument, 
therefore, proves nothing, because it proves too 
much. 

The second argument is, that the States are not 






ITS TKUE NATURE AND CHARACTER. 147 

equally represented, but each one has a representation 
proportioned to its population. There is no reason, 
apparent to me, why a league may not be formed 
among independent sovereignties, giving to each an 
influence in the management of their common con- 
cerns, proportioned to its strength, its wealth, or the 
interest which it has at stake. This is but simple 
justice, and the rule ought to prevail in all cases, ex- 
cept where higher considerations disallow it. History 
abounds with examples of such confederations, one of 
which I will cite. The States General of the United 
Provinces were strictly a federal body. The Council 
of State had almost exclusively the management and 
control of all their military and financial concerns ; 
and in that body, Holland and some other provinces 
had three votes each, whilst some had two, and others 
only one vote each. Yet it never was supposed that 
for this reason the United Provinces were a consoli- 
dated nation. A single example of this sort affords a 
full illustration of the subject, and renders all farther 
argument superfluous. 

It is not, however, from the apportionment of its 
powers, nor from the modes in which these powers are 
exercised, that we can determine the true character of 
a legislative body, in the particular now under con- 
sideration. The true rule of decision is found in the 
manner in which the body is constituted, and that, we 
have already seen, is, in the case before us, federative, 
and not national. 

We may safely admit, however, that the House of 



148 THE FEDERAL GOVERNMENT : 

^Representatives is not federative, and yet contend, with 
perfect security, that the legislative department is so. 
Congress consists of the House of Eepresentatives and 
Senate. Neither is a complete legislature in itself, 
and neither can pass any law without the concurrence 
of the other. And, as the Senate is the peculiar 
representative of the States, no act of legislation 
whatever can be performed without the consent of 
the States. They hold, therefore, a complete check 
and control over the powers of the people in this re- 
spect, even admitting that those powers are truly and 
strictly represented in the other branch. It is true 
that the check is mutual ; but if the legislative de- 
partment were national, there would be no federative 
feature in it. It cannot be replied, with equal pro- 
priety, that, if it were federative, there would be no 
national feature in it. The question is, whether or 
not the States have preserved their distinct sovereign 
characters, in this feature of the Constitution. If 
they have done so in any part of it, the whole must 
be considered federative ; because national legislation 
implies a unity, which is absolutely inconsistent with 
all idea of a confederation ; whereas, there is nothing 
to prevent the members of a confederation from ex- 
erting their several powers, in any form of joint action 
which may seem to them proper. 

But there is one other provision of the Constitution 
which appears to me to be altogether decisive upon 
this point. Each State, whatever be its population, is 
entitled to at least one representative. It may so hap- 



ITS TRUE NATURE AND CHARACTER. 149 

pen that the unrepresented surplus, in some one State, 
may be greater than the whole population of some 
other State ; and yet such latter State would be en- 
titled to a representative. Upon what principle is 
this? Surely, if the House of Eepresentatives were 
national, something like equality would be found in 
the constitution of it. Large surpluses would be ar- 
bitrarily rejected in some places, and smaller numbers, 
not equal to the general ratio, be represented in 
others. There can be but one reason for this : As the 
Constitution was made by the States, the true princi- 
ples of the confederation could not be preserved, 
without giving to each party to the compact a place 
and influence in each branch of the common legisla- 
ture. This was due to their perfect equality as sov- 
ereign States. 

The Executive. — In the election of the President and 
Vice-President, the exclusive agency of the States, as 
such, is preserved with equal distinctness. These offi- 
cers are chosen by electors, who are themselves chosen 
by the people of each State, acting by and for itself, 
and in such mode as itself may prescribe. The num- 
ber of electors to which each State is entitled is equal 
to the whole number of its representatives and senators. 
This provision is even more federative than that which 
apportions representation in the House of Eepresent- 
atives ; because it adds two to the electors of each 
State, and, so far, places them on an equality, what- 
ever be their comparative population. The people of 
each State vote within the State, and not elsewhere ; 



150 'THE FEDEK1L GOVEENMENT : 

an i for their own electors, and for no others. Each 
State prescribes the qualifications of its own electors, 
and can alone compel them to vote. The electors, 
when chosen, give their votes within their respective 
States, and at such times and places as the States may 
respectively prescribe. 

There is not the least trace of national agency, in 
any part of this proceeding. The Federal Govern- 
ment can exercise no rightful power in the choice of 
its own Executive. " The people of the United States " 
are equally unseen in that important measure. Neither 
a majority, nor the whole of them together, can choose 
a President, except in their character as citizens of 
the several States. Nay, a President may be consti- 
tutionally elected, with a decided majority of the people 
against him* For example, New York has forty-two 



* This fact proves beyond dispute that the Union is a government of 
States as independent communities, and not oi the people as one body. 
When the Constitution was adopted and tl^e present Union weut into 
operation in 17S9, there were eleven States having fifty-nine representatives, 
of which four States bad thirty-two, while the other seven had but twenty- 
seven, and yet the minority of the people could elect the President and dis- 
pense all the powers of the Union. In 1790, when the first census was 
taken, four States had a population of one million seven hundred and ten 
thousand, while the other nine had only one million three hundred and 
ninety thousand. Thus four States, having a majority of the population, 
had but eight senators, while the nine States, with a minority of the people, 
had eighteen senators. That, surely, was not a government of the whole 
people, as one body, but of the States as sovereign communities. When 
the second census was taken, in 1800, the total population was four million 
two hundred and forty-seven thousand, of which four States had two mil- 
lion two hundred and twenty-six thousand, and the other twelve had two 
million twenty-one thousand. Then four States had a majority of the whole 



ITS TRUE NATURE AND CHARACTER. 151 

votes, Pennsylvania thirty, Virginia twenty-three, Ohio 
twenty-one, North Carolina fifteen, Kentucky fourteen, 
and South Carolina fifteen. These seven States can 
give a majority of all the votes, and each may elect its 
own electors by a majority of only one vote. If we 
add their minorities to the votes of the other States, 
(supposing those States to be unanimous against the 
candidate,) we may have a President constitutionally 
elected, with less than half — perhaps with little more 
than a fourth — of the people in his favor. It is true 



people of two hundred and five thousand, but they had only e 4 ght votes in 
the Senate, and eig hty-two for President ; while the twelve States, with a 
minority of population, had twenty- four votes in the Senate and ninety-one 
for President. When the third census was taken, in 1810, there were seven- 
teen States, with a total population of five million seven hundred and sixty- 
five thousand, of which four States had a majority of two hundred and 
thirty-one thousand, but they had only eight votes in the Senate and one 
hundred and one for President, while the rest, with a minority of the peo- 
ple, had twenty-six votes in the Senate and one hundred and fourteen for 
President. When the fourth census was taken, in 1820, six States had a 
population of four million one hundred and ninety-nine thousand, the other 
eighteen had but three million six hundred and fifty-seven thousand. Then 
six States had a majority of five hundred and forty-two thousand of the peo- 
ple, but they had only twelve votes in the Senate and one hundred and 
twenty-six for President, while the rest had thirty-six votes in the Senate 
and one hundred and thirty -five for President. At the next census, 1830, 
six States had a majority of two hundred and twenty-four thousand of the 
total population, while they had but twelve votes in the Senate and one 
hundred and thirty-six for President, and the minority of the people, but 
the majority of States, had thirty-six senators and one hundred and fifty- 
three votes for President. Thus, in the Federal Government, the words 
majority and minority do not apply to the number of people, but to the 
number of States. Can anything more be required to prove that the Union 
is a government of States as separate bodies, and not of the people as one 
population ?— [C. C. B. 



152 THE FEDERAL GOVERNMENT I 

that he may also be constitutionally elected with a 
majority of the States, as such, against him, as the 
above example shows ; because the States may, as be- 
fore remarked, properly agree, by the provisions of 
their compact, that they shall possess influence, in this 
respect, proportioned to their population. But there 
is no mode, consistent with the true principles of free 
representative government, by which a minority of 
those to whom, en masse, the elective franchise is con- 
fided, can countervail the concurrent and opposing 
action of the majority. If the President could be 
chosen by the people of the "United States" in the 
aggregate, instead of by the States, it is difficult to 
imagine a case in which a majority of those people, 
concurring in the same vote, could be overbalanced by 
a minority. 

All doubt upon this point, however, is removed by 
another provision of the Constitution touching this 
subject. If no candidate should receive a majority of 
votes in the Electoral College, the House of Repre- 
sentatives elects the President, from the three candi- 
dates which have received the largest electoral vote. 
In doing this, two-thirds of the States must be present 
by their representatives, or one of them, and then they 
vote by States, all the members of each State giving one 
vote, and a majority of all the States being necessary to a 
choice. This is precisely the rule which prevailed in 
the ordinary legislation of that body, under the Arti- 
cles of Confederation, and which proved its federative 
character as strongly as any other provision of those 



ITS TRUE NATURE AXD CHARACTER. 153 

articles. Why, then, should this federative principle 
be preserved, in the election of the President by the 
House of Representatives, if it was designed to 
abandon it, in the election of some officer by the 
Electoral Colleges ? No good reason for it has yet 
been assigned, so far as I am informed. On the con- 
trary, there is every just reason to suppose, that those 
who considered the principle safe and necessary in one 
form of election, would adhere to it as equally safe 
and necessary in every other, with respect to the same 
public trust. And this is still farther proved by the 
provision of the Constitution relating to the election 
of the Vice-President. In case of the death or con- 
stitutional disability of the President, every executive 
trust devolves on him ; and, of course, the same gen- 
eral principle should be applied, in the election of both 
of them. This is done in express terms, so far as the 
action of the Electoral Colleges is contemplated. But 
if those Colleges should fail to elect a Vice-President, 
that trust devolves on the Senate, who are to choose 
from the two highest candidates. Here the federative 
principle is distinctly seen, for the Senate is the repre- 
sentative of the States. 

This view of the subject is still farther confirmed by 
the clause of the Constitution relating to impeach- 
ments. The power to try the President is vested in 
the Senate alone, that is, in the representatives of the 
States. There is a strict fitness and propriety in this ; 
for those only, whose officer the President is, should 
be entrusted with the power to remove him. 



I 

1 



154 THE FEDERAL GOVERNMENT : 

It is believed to be neither a forced nor an unrea- 
sonable conclusion from all this, that the Executive 
Department is, in its structure, strictly federative. 

The Judiciary. — The Judges are nominated by the 
President, and approved by the Senate. Thus the 
nominations are made by a federate officer, and the 
approval and confirmation of them depend on those 
who are the exclusive representatives of the States. 
This agency is manifestly federative, and " the people 
of the United States " cannot mingle in it, in any form 
whatever. 

As the Constitution is federative in the structure of 
all three of its great departments, it is equally so in 
the power of amendment. 

Congress may propose amendments, " whenever two- 
thirds of both houses shall deem it necessary." This 
secures the States against any action upon the subject 
by the people at large. In like manner, Congress may 
call a convention for proposing amendments, " on the 
application of the legislatures of two-thirds of the 
several States." It is remarkable that, whether Con- 
gress or the States act upon the subject, the same pro- 
portion is required ; not less than two-thirds of either 
being authorized to act. From this, it is not unrea- 
sonable to conclude, that the convention considered 
that the same power would act in both cases ; to wit : 
the power of the States, who might effect their object 
either by their separate action as States, or by the 
action of Congress, their common federative agent ; 
but, whether they adopted the one mode or the other, 



ITS TRUE NATURE AND CHARACTER. 155 

not less than two-thirds of them should be authorized 
to act efficiently. 

The amendments thus proposed "shall be valid to 
all intents and purposes, as part of this Constitution, 
when ratified by the legislatures of three-fourths of the 
several States, or by conventions in three-fourths thereof 
as the one or the other mode of ratification may be 
proposed by Congress." It is the act of adoption or 
ratification alone which makes a constitution. In the 
case before us, the States alone can perform that act. 
The language of the Constitution admits of no doubt, 
and gives no pretext for double construction. It is 
not the people of the United States in the aggregate, 
merely acting in their several States, who can ratify 
amendments. Three-fourths of the several States can 
alone do this. The idea of separate and independent 
political corporations- could not be more distinctly 
conveyed, by any form of words. If the people of the 
United States, as one people, but acting in their 
several States, could ratify amendments, then the 
very language of the Constitution requires that three- 
fourths of them shall concur therein. Is it not, then, 
truly wonderful that no mode has yet been pre- 
scribed to ascertain, whether three-fourths of them 
do concur or not ? By what power can the necessary 
arrangement upon this point be effected ? In point of 
fact, amendments have already been made, in strict 
conformity with this provision of the Constitution. 
We ask our author, whether three-fourths of the peo- 
ple of the United States concurred in those amend- 



156 THE FEDERAL GOVERNMENT I 

ments or not ; and if they did, whence does he derive 
the proof of it ? 

If Judge Story, and the politicians of his school, be 
correct in the idea, that the Constitution was formed 
by "the people of the United States," and not by the 
States, as such, this clause relating to amendments 
presents a singular anomaly in politics. Their idea is 
that the State sovereignties were merged, to a certain 
extent, in that act, and that the government establish- 
ed was emphatically the government of the people of 
the United States. And yet, those same people can 
neither alter nor amend that government. In order 
to perform this essential function, it is necessary to 
call again into life and action those very State sover- 
eignties which were supposed to be merged and dead, 
by the very act of creating the instrument which they 
are required to amend. To alter or amend a govern- 
ment requires the same extent of power which is re- 
quired to form one ; for every alteration or amend- 
ment is, as to so much, a new government. And, of 
all political acts, the formation of a constitution of 
government is that which admits and implies, the most 
distinctly and to the fullest extent, the existence of 
absolute, unqualified, unconditional, and unlimited 
sovereignty. So long, therefore, as the power of 
amending the Constitution rests exclusively with the 
States, it is idle to contend that they are less sover- 
eign now than they were before the adoption of that 
instrument. 

The idea which I am endeavoring to enforce, of the 



ITS TRUE NATURE AND CHARACTER. 157 

federative character of the Constitution, is still farther 
confirmed by that clause of the article under con- 
sideration, which provides that no amendment shall 
be made to deprive any State of its equal suffrage in 
the Senate, without its own consent. So strongly 
were the States attached to that perfect equality 
which their perfect sovereignty implied, and so 
jealous were they of every attack upon it, that they 
guarded it, by an express provision of the Constitu- 
tion, against the possibility of overthrow. All other 
rights they confided to that power of amendment 
which they reposed in three-fourths of all the States ; 
but this they refused to entrust, except to the separate, 
independent and sovereign will of each State ; giving 
to each, in its own case, an absolute negative upon all 
the rest* 

The object of the preceding pages has been to show 
that the Constitution is federative, in the power which 
framed it ; federative in the power which adopted and 
ratified it ; federative in the power which sustains and 
keeps it alive ; federative in the power by which alone 
it can be altered or amended ; and federative in the 
structure of all its departments. In what respect, 



* So absolutely is the Federal Government dependent on the States for 
its existence at all times, that it may be absolutely dissolved, without the 
least violence, by the simple refusal of a part of the States to act. If, for 
example, a few States, having a majority of electoral votes, should refuse 
to appoint electors of President and Vice-President, there would be no 
constitutional Executive, and the whoie machinery of government would 
stop. 



158 THE FEDERAL GOVERNMENT : 

then, can it justly be called a consolidated or national 
government? Certainly, the mere fact that, in par- 
ticular cases, it is authorized to act directly on the 
people, does not disprove its federative character, 
since that very sovereignty in the States, which a con- 
federation implies, includes within it the right of the 
State to subject its own citizens to the action of the 
common authority of the confederated States, in any 
form which may seem proper to itself. Neither is our 
Constitution to be deemed the less federative, because 
it was the object of those who formed it to establish 
" a government," and one effective for all the legiti- 
mate purposes of government. Much emphasis has 
been laid upon this word, and it even has been thought, 
by one distinguished statesman of Judge Story's 
school, that ours is " a government proper" which I 
presume implies that it is a government in a peculiarly 
emphatic sense. I confess that I do not very clearly 
discern the difference between a government and a 
government proper. Nothing is a government which 
is not properly so ; and whatever is properly a govern- 
ment is a government proper. But whether ours is a 
" government proper," or only a simple government, 
does not prove that it is not a confederation, unless it 
be true that a confederation cannot be a govern- 
ment. 

For myself, I am unable to discover why States, ab- 
solutely sovereign, may not create for themselves, by 
compact, a common government, with powers as ex- 



ITS TRUE NATURE AND CHARACTER. 159 

tensive and supreme as any sovereign people can con- 
fer on a government established by themselves. In 
what other particular ours is a consolidated or national 
government, I leave it to the advocates of that doc- 
trine to show. 



160 THE FEDERAL GOVERNMENTS 



CHAPTEE IX. 

EXTENT AND LIMITS OF THE JURISDICTION OF THE SUPREME 
COURT OF THE UNITED STATES. 

We come now to a more particular and detailed ex- 
amination of the question, "Who is the final judge 
or interpreter in constitutional controversies ?" The 
fourth chapter of this division of Judge Story's work 
is devoted to this inquiry ; and the elaborate exami- 
nation which he has given to the subject, shows that 
he attached a just importance to it. The conclusion, 
however, to which he has arrived, leaves still unsettled 
the most difficult and contested propositions which 
belong to this part of the Constitution. His conclu- 
sion is, that, " in all questions of a judicial nature," 
the Supreme Court of the United States is the final 
umpire ; and that the States, as well as individuals, 
are absolutely bound by its decisions. His reasoning 
upon this part of the subject is not new, and does not 
strike me as being particularly forcible. Without 
deeming it necessary to follow him in the precise order 
of his argument, I shall endeavor to meet it in all 
its parts, in the progress of this examination. Its 
general oullime is this : It is within the proper func- 
tion of the judiciary to interpret the laws ; the Con- 



ITS TRUE NATURE AND CHARACTER. 161 

stitution is tne supreme law, and therefore it is within 
the proper function of the judiciary to interpret the 
Constitution ; of course, it is the province of the fed- 
eral judiciary to interpret the Federal Constitution. 
And as that Constitution, and all laws made in pursu- 
ance thereof, are the supreme law of the land, any- 
thing in the laws or constitution of any State to the 
contrary notwithstanding, therefore, the interpreta- 
tions of that Constitution, as given by the Supreme 
Court, are obligatory, final and conclusive, upon the 
people and the States. 

Before we enter upon this investigation, it is proper 
to place the proposition to be discussed in terms some- 
what more definite and precise than those which the 
author has employed. "What, then, is meant by " final 
judge and interpreter ?" In the ordinary acceptation 
of these terms, we should understand by them a tri- 
bunal having lawful cognizance of a subject, and frcm 
whose decisions there is no appeal. In this view of 
the question, there can be no difficulty in admitting 
that the decisions of the Supreme Court are final and 
conclusive. "Whatever comes within the legitimate 
cognizance of that tribunal, it has a right to decide, 
whether it be a question of the law or of the Consti- 
tution, and no other tribunal can reverse its decision. 
The Constitution, which creates the Supreme Court, 
creates no other court of superior or appellate juris- 
diction to it, and, consequently, its decisions are 
strictly " final. " There is no power in the same gov- 
ernment to which that court belongs to reverse or control 



162 THE FEDERAL GOVERNMENT : 

it, nor are there any means therein of resisting its au- 
thority. So far, therefore, as the Federal Constitution 
has provided for the subject at all, the Supreme Court 
is, beyond question, the final judge or arbiter ; and 
this, too, whether the jurisdiction which it exercises 
be legitimate or usurped. 

The terms " constitutional controversies " are still 
more indefinite. Every controversy which is submit- 
ted to the decision of a judicial tribunal, whether 
State or federal, necessarily involves the constitution- 
ality of the law under which it arises. If the law be 
not constitutional, the court cannot enforce it, and, of 
course, the question whether it be constitutional or 
not, necessarily arises in every case to which the court 
is asked to apply it. The very act of enforcing a law 
presupposes that its constitutionality has been deter- 
mined. In this sense, every court, whether State or 
federal, is the "judge or arbiter of constitutional con- 
troversies," arising in causes before it ; and if there 
be no appeal from its decision, it is the " final " judge 
or arbiter, in the sense already expressed. 

Let us now inquire what " constitutional controver- 
sies " the federal courts have authority to decide, and 
how far its decisions are final and conclusive against 
all the world. 

The third article of the Constitution provides that 
" the judicial powers shall extend to all cases in law 
and equity, arising under this Constitution, the laws of 
the United States, and the treaties made, or which 
shall be made, under their authority ; to all cases af- 



ITS TRUE NATURE AND CHARACTER. 163 

fecting ambassadors, other public ministers and con- 
suls ; to all cases of admiralty and maritime jurisdic- 
tion ; to controversies to which the United States 
shall be a party ; to controversies between two or 
more States ; between a State and citizens of another 
State ; between citizens of different States ; between 
citizens of the same State, claiming lands under 
grants of different States ; and between a State and 
the citizens thereof, and foreign States, citizens or 
subjects. " 

The eleventh amendment provides that " the judi- 
cial power of the United States shall not be construed 
to extend to any suit in law or equity, commenced or 
prosecuted against one of the United States by citizens 
of another State, or by citizens and subjects of any 
foreign State." 

It will be conceded on all hands that the federal 
courts have no jurisdiction except what is here con- 
ferred. The judiciary, as a part of the Federal Gov- 
ernment, derives its powers only from the Constitu- 
tion which creates that government. The term 
"cases" implies that the subject matter shall be 
proper for judicial decision ; and the parties between 
whom alone jurisdiction can be entertained, are speci- 
fically enumerated. Beyond these " cases " and these 
parties they have no jurisdiction. — 

There is no part of the Constitutio n in which the 
framers of it have displayed a more jealous care of 
1he rights of the States, than in the limitations of the 
judicial power. It is remarkable that no power is 



164 THE FEDERAL GOVERNMENT ! 

conferred except what is absolutely necessary to carry 
into effect the general design, and accomplish the gen- 
eral object of the States, as independent, confederated 
States. The federal tribunals cannot take cognizance 
of any case whatever in which all the States have nob 
an equal and common interest that a just and impar- 
tial decision shall be had. A brief analysis of the pro- 
visions of the Constitution will make this sufficiently 
clear. 

Cases " arising under the Constitution " are those 
in which some right or privilege is denied, which the 
Constitution confers, or something is done which the 
Constitution prohibits, as expressed in the Constitu- 
tion itself. Those which arise " under the laws of the 
United States " are such as involve rights or duties, 
which result from the legislation of Congress. Cases 
of these kinds are simply the carrying out of the com- 
pact or agreement made between the States, by the 
Constitution itself, and, of course, all the States are 
alike interested in them. For this reason alone, if 
there were no other, they ought to be entrusted to the 
common tribunals of all the States. There is another 
reason, however, equally conclusive. The judicial 
should always be at least co-extensive with the legisla- 
tive power ; for it would be a strange anomaly, and 
could produce nothing but disorder and confusion, to 
confer on a government the power to make a law, with- 
out conferring at the same time the right to interpret 
and the power to enforce it. 

Cases arising under treaties, made under the au- 



ITS TRUE NATURE AND CHARACTER. 165 

thority of the United States, and those " affecting am- 
bassadors and other public ministers and consuls/' 
could not properly be entrusted to any other than the 
federal tribunals. Treaties are made under the com- 
mon authority of the States, and a'l, alike, are bound 
for the faithful observance of them. Ambassadors and 
other public ministers and consuls are received under 
the common authority of all the States, and their 
duties relate only to matters involving alike the inter- 
ests of all. The peace of the country, and the har- 
mony of its relations with foreign powers, depend, in 
a peculiar degree, on the good faith with which its 
duties in reference to these subjects are discharged. 
Hence it would be unsafe to entrust them to any 
other than their own control ; and even if this were 
not so, it would be altogether incongruous to appeal 
to a State tribunal, to enforce the rights, the obliga- 
tions or the duties of the United States. For like 
reasons, cases of admiralty and maritime jurisdiction 
are properly entrusted to the federal tribunals. 

Controversies to which the United States shall be a 
party should, upon general principles, belong only to 
her own courts. There would be neither propriety 
nor justice in permitting any one State to decide a 
case in which all the States are parties. In like man- 
ner, those between two or more States — between a 
State and citizens of another State, where the State is 
plaintiff — (it cannot be sued) — and between citizens of 
different States, could not be entrusted to the tribu- 
nals of any particular State interested, or whose citi- 



166 THE FEDERAL GOVERNMENT: 

zens are interested therein, without danger of injustice 
and partiality. Jurisdiction is given to the federal 
courts, in these cases, simply because they are equally 
interested for all the parties, are the common courts 
of all the parties, and therefore are presumed to form 
the only fair and impartial tribunal between them. 
The same reasoning applies to cases between citizens 
of the same State, claiming lands under grants of dif- 
ferent States. Cases of this sort involve questions of 
the sovereign power of the States, and could not, with 
any show of propriety, be entrusted to the decision of 
either of them, interested as it would be to sustain its 
own acts, against those of the sister State. The juris- 
diction in this case is given upon the same princ ! ples 
which give it in cases between two or more States. 

Controversies between a State or the citizens there- 
of, and foreign States, citizens or subjects, depend on 
a different principle, but one equally affecting the 
common rights and interests of all the States. A 
foreign State cannot, of course, be sued ; she can ap- 
pear in our courts only as plaintiff. Yet, in whatever 
form such controversies, or those affecting the citizens 
of a foreign State, may arise, all the States have a deep 
interest that an impartial tribunal, satisfactory to the 
foreign party, should be provided. The denial of jus- 
tice is a legitimate, and not an unfruitful cause of war. 
As no State can be involved in war without involving 
all the rest, they all have a common interest to with- 
draw from the State tribunals a jurisdiction which 
may bring them within the danger of that result. All 



ITS TRUE NATURE AND CHARACTER. 167 

the States are alike bound to render justice to foreign 
States and their people ; and this common responsi- 
bility gives them a right to demand that every ques- 
tion involving it shall be decided by their common 
judicatory. 

This brief review of the judicial power of the 
United States, as given in the Constitution, is not of- 
fered as a full analysis of the subject ; for the ques- 
tion before us does not render any such analysis 
necessary. My design has been only to show with 
what extreme reserve judicial power has been confer- 
red, and with what caution it has been restricted to 
those cases, only, which the new relation between the 
States established by the Constitution rendered abso- 
lutely necessary. In all the cases above supposed, the 
jurisdiction of the federal courts is clear and undoubt- 
ed ; and as the States have, in the frame of the Con- 
stitution, agreed to submit to the exercise of this 
jurisdiction, they are bound to do so, and to compel 
their people to like submission. But it is to be re- 
marked, that they are bound only by their agreement, 
and not beyond it. They are under no obligation to 
submit to the decisions of the Supreme Court, on 
subject matter not properly cognizable before it, nor 
to those between parties not responsible to its juris- 
diction.* Who, then, is to decide this point ? Shall 



* The decisions of the Supreme Court T^ave declared that its jurisdiction is 
limited by the Constitution, laws and treaties of the United States, and that 
it has no power of acting, except where the subject is submitted according 



1G8 THE FEDERAL GOVERNMENT: 

the Supreme Court decide for itself, and against 
all the world ? It is admitted that every court must 
necessarily determine every question of jurisdiction 
which arises before it, and, so far, it must of course 
be the judge of its own powers. If it be a court of 
the last resort, its decision is necessarily final, so far 
as those authorities are concerned, which belong to 
the same system of government with itself. There is, 
in fact, no absolute and certain limitation, in any con- 
stitutional government, to the powers of its own judi- 
ciary ; for, as those powers are derived from the Con- 
stitution, and as the judges are the interpreters of the 



to the form presented by law. (9 Wheaton, 738 ; 5 Peters, 20 ; 6 Wheaton, 
264.) The original jurisdiction of the Supreme Court is pointed out by the 
Constitution, and cannot be lessened nor enlarged by act of Congress ; for 
Congress cannot transcend the powers intrusted to it in the Constitution. 
1 Cranch, 137, 175.) The Supreme Court has no jurisdiction in any case 
where a State is the defendant. (See Eleventh Amendment to the Con- 
stitution ; 9 Wheaton, 732.) Where two parties in a State Court set up con- 
flicting titles under the same act of Congress, the Supreme Court has no 
power to override the decision of the State Court. The decision of the State 
Court is final in such cases. (3 Wheaton, 433 ; 6 Wheaton, 448.) The Su- 
preme Court has no authority, on a writ of error, to declare a law of a 
State void on account of its collision with the Constitution of that State. 
)3 Peters, 288.) The Supreme Court has no authority to issue a habeas cor- 
pus in the case of persons held by the action of the State Court. (1 Wash., 
239.) Many other cases might be named which show the limited jurisdic- 
tion of the Supreme Court of the United States. It has jurisdiction over no 
matter which the States have not delegated in the Constitution. Over all 
matters which the States have not delegated to the Federal Government, 
the State Courts are supreme. Mr. Chase, the present Chief Justice, speak- 
ing of the sovereignty of the State of Ohio in 1854, said : " We have rights 
which the Federal Government must not invade— rights superior to its 
power, on which our sovereignty depends." Such a proposition necessarily 
follows from the limited nature of the Federal Government— [C. C. B. 



ITS TRUE NATURE AND CHARACTER. 169 

Constitution, there is nothing to prevent them from 
interpreting in favor of any power which they may 
claim. The Supreme Court, therefore, may assume 
jurisdiction over subjects and between parties, not al- 
lowed by the Constitution, and there is no power in 
the Federal Government to gainsay it. Even the im- 
peachment and removal of the judges, for ignorance 
or corruption, would not invalidate their decisions 
already pronounced. Is there, then, no redress? 
The Constitution itself will answer this question in 
the most satisfactory manner. 

The tenth article of the Amendments of the Consti- 
tution provides that " The powers not delegated to 
the United States by the Constitution, nor prohibited 
by it to the States, are reserved to the States respec- 
tively, or to the people." The powers thus reserved, 
are not only reserved against the Federal Government 
in whole, but against each and every department 
thereof. The judiciary is no more excepted out of 
the reservation than is the legislature or the Execu- 
tive. Of what nature, then, are those reserved pow- 
ers ? Not the powers, if any such there be, which are 
possessed by all the States together, for the reserva- 
tion is to "the States respectively ;" that is, to each 
State separately and distinctly. Now we can form no 
idea of any power possessed by a State as such, and 
independent of every other State, which is not, in its 
nature, a sovereign power. Every power so reserved, 
therefore, must be of such a character that each State 



170 THE FEDERAL GOVERNMENT ! 

may exercise it, without the least reference to respon- 
sibility to any other State whatever. 

"We have already seen that the Constitution of the 
United States was formed by the States as such, and 
the reservation above quoted is an admission that, in 
performing that work, they acted as independent and 
sovereign States. It is incident to every sovereignty 
to be alone the judge of its own compacts and agree- 
ments. No other State or assemblage of States has 
the least right to interfere with it, in this respect, and 
cannot do so without impairing its sovereignty. The 
Constitution of the United States is but the agree- 
ment which each State has made, with each and all 
the other States, and so distinguishable, in the princi- 
ple we are examining, from any other agreement be- 
tween sovereign States. Each State, therefore, has a 
right to interpret that agreement for itself, unless it 
has clearly waived that right in favor of another 
power. That the right is not waived in the case un- 
der consideration, is apparent from the fact already 
stated, that if the judiciary be the sole judges of the 
extent of their own powers, their powers are univer- 
sal, and the enumeration in the Constitution is idle 
and useless. But it is still further apparent from the 
following view : 

The Federal Government is the creature of the 
States. It is not a party to the Constitution, but the 
result of it — the creation of that agreement which was 
made by the States as parties. It is a mere agent, en- 
trusted with limited powers for certain specific ob- 



ITS TRUE NATURE AND CHARACTER. 171 

jects ; which powers and objects are enumerated in 
the Constitution. Shall the agent be permitted to 
judge of the extent of his own powers, without refer- 
ence to his constituent ? To a certain extent, he is 
compelled to do this, in the very act of exercising 
them, but this is always in subordination to the au- 
thority by whom his powers were conferred. If this 
were not so, the result would be, that the agent would 
possess every power which the constituent could con- 
fer, notwithstanding the plainest and most express 
terms of the grant. This would be against all prin- 
ciple and all reason. If such a rule would prevail in 
regard to government, a written constitution would 
be the idlest thing imaginable. It would afford no 
barrier against the usurpations of the government, 
and no security for the rights and liberties of the 
people. If then the Federal Government has no au- 
thority to judge, in the last resort, of the extent of 
its own powers, with what propriety can it be said that 
a single department of that government may do so ? 
Nay, it is said that this department may not only 
judge for itself, but for the other departments also. 
This is an absurdity as pernicious as it is gross and 
palpable. If the judiciary may determine the powers 
of the Federal Government, it may pronounce them 
either less or more than they really are. That gov- 
ernment at least would have no right to complain of 
the decisions of an umpire which it had chosen for it- 
self, and endeavored to force upon the States and the 
people. Thus a single department might deny to 



172 THE FEDERAL GOVERNMENT : 

both the others salutary powers which they really 
possessed, and which the public interest or the public 
safety might require them to exercise ; or it might 
confer on them powers never conceded, inconsistent 
with private right, and dangerous to public liberty. 

In construing the powers of a free and equal gov- 
ernment, it is enough to disprove the existence of any 
rule, to show that such consequences as these will 
result from it. Nothing short of the plainest and 
most unequivocal language should reconcile us to the 
adoption of such a rule. No such language can be 
found in our Constitution. The only clause, from 
which the rule can be supposed to be derived, is that 
which confers jurisdiction in " all cases arising under 
the Constitution, and the laws made in pursuance 
thereof ; but this clause is clearly not susceptible of 
any such construction. Every right may be said to be 
a constitutional right, because no right exists which 
the Constitution disallows ; and, consequently, every 
remedy to enforce those rights presents " a case 
arising under the Constitution." But a construction 
so latitudinous will scarcely be contended for by any 
one. The clause under consideration gives jurisdic- 
tion only as to those matters, and between those par- 
ties, enumerated in the Constitution itself. Whenever 
such a case arises, the Federal courts have cognizance 
of it ; but the right to decide a case arising under the 
Constitution, does not necessarily imply the right to 
determine in the last resort what that Constitution is. 
If the Federal courts should, in the \evy teeth of the 



ITS TRUE NATURE AND CHARACTER. 173 

eleventh amendment, take jurisdiction of cases " com- 
menced or prosecuted against one of the States by 
citizens of another SLate," the decisions of those 
courts, that they had jurisdiction, would certainly not 
settle the Constitution in that particular. The State 
would be under no obligation to submit to such a de- 
cision, and it would resist it by virtue of its sovereign 
right to decide for itself, whether it had agreed to the 
exercise of such a jurisdiction or not. 

Considering the nature of our system of govern- 
ment, the States ought to be, and I presume always 
will be, extremely careful not to interpose their sover- 
eign power against the decisions of the Supreme 
Court in any case where that court clearly has juris- 
diction. Of this character are the cases already cited 
at the commencement of this inquiry ; such, for ex- 
ample, as those between two States, those affecting 
foreign ministers, those of admiralty and maritime 
jurisdiction, &c. As to all these subjects the jurisdic- 
tion is clear, and no State can have any interest to dis- 
pute it. The decisions of the Supreme Court, there- 
fore, ought to be considered as final and conclusive, 
and it would be a breach of the contract on the part 
of any State to refuse submission to them. There 
are, however, many cases involving questions of the 
powers of government, State and federal, which can- 
not assume a proper form for judicial investigation. 
Most questions of mere political power are of this 
sort ; and such are all questions between a State and 
the United States. As to these, the Constitution con" 



174 THE FEDERAL GOVERNMENT : 

fers no jurisdiction on the federal courts, and, of 
course, it provides no common umpire to whose deci- 
sion they can be referred. In such cases, therefore, 
the State must of necessity decide for itself. But 
there are also cases between citizen and citizen, 
arising under the laws of the United States, and be- 
tween the United States and the citizen, arising in the 
same way. So far as the federal tribunals have cog- 
nizance of such cases, their decisions are final. If the 
constitutionality of the law under which the case 
arises, should come into question, the court has au- 
thority to decide it, and there is no relief for the par- 
ties, in any other judicial proceeding. If the decision, 
in a controversy between the United States and a 
citizen, should be against the United States, it is, of 
course, final and conclusive. If the decision should 
be against the citizen, his only relief is by an appeal 
to his own State. He is under no obligation to sub- 
mit to federal decisions at all, except so far only as 
his own State has commanded him to do so ; and he 
has, therefore, a perfect right to ask his State whether 
her commands extend to the particular case or not. 
He does not ask whether the federal court has inter- 
preted the law correctly or not, but whether or not she 
ever consented that Congress should pass the law. If 
Congress had such power, he has no relief, for the de- 
cision of the highest federal court is final ; if Con- 
gress had not such power, then he is oppressed by the 
action of a usurped authority, and has a right to look 
to his own State for redress. His State may inter- 



ITS TRUE NATURE AND CHARACTER. 175 

pose in his favor or not, as she may think proper. If 
she does not, then there is an end of the matter ; if 
she does, then it is no longer a judicial question. The 
question is then between new parties, who are not 
bound by the former decision ; between a State and 
the United States. As between these parties the fed- 
eral tribunals have no jurisdiction, there is no longer 
a common umpire to whom the controversy can be 
referred. The State must of necessity judge for 
itself, by virtue of that inherent, sovereign power and 
authority, which, as to this matter, it has never sur- 
rendered to any other tribunal. Its decision, what- 
ever it may be, is binding upon itself and upon its 
own people, and no farther. 

A great variety of cases are possible, some of which 
are not unlikely to arise, involving the true construc- 
tion of the Federal Constitution, but which could not 
possibly be presented to the courts, in a form proper 
for their decision. The following are examples: 

By the 4th section of the 4th article it is provided 
that " Congress shall guaranty to every State in the 
Union a republicen form of government." "What 
is a republican form of government, and how shall 
the question be decided? In its very nature, it 
is a political, and not a judicial question, and it is not 
easy to imagine by what contrivance it could be 
brought before a court. Suppose a State should 
adopt a constitution not republican, in the opinion of 
Congress, what course would be pursued ? Congress 
might, by resolution, determine that the constitution 



176 THE FEDERAL GOVERNMENT : 

was not republican, and direct the State to form a 
new one. And suppose that the State should refuse 
to do so, on the ground that it had already complied 
with the requisitions of the Federal Constitution in 
that respect ? Could Congress direct an issue to try 
the question at the bar of the Supreme Court ? This 
would, indeed, be an odd way of settling the rights of 
nations, and determining the extent of their powers ! 
Besides, who would be parties to the issue ? at whose 
suit should the State be summoned to appear and 
answer ? Not at that of the United States, because a 
State cannot be sued by the United States, in a federal 
court; not at that of any other State, nor of any indi- 
te/ g i I vidual citizen, because they are not concerned in the 
question. It is obvious that the case does not present 
proper subject matter for judicial investigation; and 
even if it did, that no parties could be found author- 
ized to present the issue. 

Again, Congress has authority " to provide for or- 
ganizing, arming and disciplining the militia, and for 
governing such part of them as may be employed in 
the service of the United States; reserving to the 
States, respectively, the appointment of the officers 
and the authority of training the militia according to 
the discipline prescribed by Congress." Suppose that 
Congress should usurp the right to appoint the mili- 
tia officers, or the State should insist on training the 
militia in their own way, and not " according to the 
discipline prescribed by Congress." How could this 
matter be brought before the Supreme Court ? and 



ITS TRUE NATURE AND CHARACTER. 177 

even if properly brought there, how could its sentence 
be executed ? 

Again, suppose that Congress should enact that all 
the slaves of the country should immediately be free. 
This is certainly not impossible, and I fear not even 
improbable, although it would be the grossest and most 
palpable violation of the rights of the slaveholder. 
This would certainly produce the most direct conflict 
between the State and Federal Governments. It 
would involve a mere question of political power — 
the question whether the act of Congress forbidding 
slavery, or the laws and Constitution of the State al- 
lowing it, should prevail. And yet it is manifest that 
it presents no subject matter proper for judicial deci- 
sion, and that the parties to it could not be convened 
before the Supreme Court. 

These examples are sufficient to show that there is 
a large class of " constitutional controversies," which 
cou.d not possibly be brought under the cognizance of 
any judicial tribunal, and still less under that of the 
federal courts. As to these cases, therefore, each 
State must, of necessity, for the reasons already 
stated, be its own " final judge or interpreter." They 
involve the mere question of political power, as be- 
tween the State and Federal Governments; and the 
fact that they are clearly withheld from the jurisdic- 
tion of the Supreme Court, goes far to prove that the 
States in framing the Constitution did not design to 
submit to that court any question of the like kind, in 
whatever form or between whatever parties it might 



178 THE FEDERAL GOVERNMENT : 

arise, except so far only as the parties themselves 
were concerned. 

Judge Story himself does not contend that the 
Supreme Court is the " final judge or interpreter " in 
all cases whatsoever; he, of course, admits that no 
court can decide any question which is not susceptible 
of a proper form for judicial enquiry. But he con- 
tends that, in all cases of which the Supreme Court 
can take cognizance, its decisions are final, and abso- 
lutely binding and conclusive in all respects, to all 
purposes, and against the States and their people. It 
is this sweeping conclusion which it has been my ob- 
ject to disprove. I can see in the federal courts 
nothing more than the ordinary functions of the judi- 
ciary in every country. It is their proper province to 
interpret the laws ; but their decisions are not bind- 
ing, except between the parties litigant and their 
privies. So far as they may claim the force of au- 
thority, they are not conclusive, even upon those who 
pronounce them, and certainly are not so beyond the 
sphere of their own government. Although the judi- 
ciary may, and frequently do, enlarge or contract the 
powers of their own governments, as generally under- 
stood, yet they can never enlarge or contract those of 
other governments, for the simple reason that other 
governments are' not bound by their decisions. And 
so in our own systems. There is no case in which a 
judicial question can arise, before a federal court, be- 
tween a State and the Federal Government. Upon 
what principle, then, are the States bound by the de- 



ITS TRUE NATURE AND CHARACTER. 179 

cisions of the federal judiciary ? Upon no principle, 
certainly, except that, as to certain subjects, they have 
agreed to be so bound. But this agreement they 
made in their character of sovereign States, not with 
the Federal Government, but with one another. As 
sovereign States, they alone are to determine the 
nature and extent of that agreement, and, of course, 
they are to determine whether or not they have given 
the federal courts authority to bind them in any given 
case. This principle has frequently been asserted by 
the States, and always successfully.* 

But these mere technical rules, upon which we have 
hitherto considered the subject, are altogether un- 
worthy of its importance, and far beneath its dignity. 
Sovereign nations do not ask their judges what are 
their rights, nor do they limit their powers by judicial 
precedents. Still less do they entrust these import- 
ant subjects to judicial tribunals not their own, and 
least of all, to the tribunals of that power against 
which their own power is asserted. It would have 
been a gross inconsistency in the States of our Union 
to do this, since they have shown in every part of their 
compact with one another, the most jealous care of 
their separate sovereignty and independence. It is 
true they have agreed to be bound by the decisions of 
federal tribunals in certain specified cases, and it is 
not to be doubted that, so long as they desire the 
continuance of their present union, they will/eeZ them- 

* Hunter and Martin, Conen vs. State of Virginia, and other cases. 



180 THE FEDERAL GOVERNMENT ! 

selves bound, in every case which comes plainly within 
their agreement. There is no necessity to call in the 
aid of the Supreme Court to ascertain to what sub- 
jects, and how far that agreement extends. So far as 
it is plain, it will be strictly observed, as national 
faith and honor require ; there is no other guarantee. 
So far as it is not plain, or so far as it may be the will 
and pleasure of any State to deny or to resist it, the 
utter impotency of courts of justice to settle the diffi- 
culty will be manifested beyond all doubt. They will 
be admonished of their responsibility to the power 
which created them. The States created them. They 
are but an emanation of the sovereign power of the 
States, and can neither limit nor control that power. 

Ordinarily, the judiciary are the proper interpreters 
of the powers of government, but they interpret in 
subordination to the power which created them. 
In governments established by an aggregate people, 
such as are those of the States, a proper corrective is 
always found in the people themselves. If the judi- 
cial interpretation confer too much or too little power 
on the government, a ready remedy is found in an 
amendment of the Constitution. But in our federal 
system the evil is without remedy, if the federal courts 
be allowed to fix the limits of federal power with re- 
ference to those of the States. It would place every 
thing in the State governments, except their mere ex- 
istence, at the mercy of a single department of the 
Federal Government. The maxim, stare decisis, is not 
always adhered to by our courts ; their own decisions 



ITS TRUE NATURE AND CHARACTER. 181 

are not held to be absolutely binding upon themselves. 
They may establish a right to-day and unsettle it to- 
morrow. A decision of the Supreme Court might ar- 
rest a State in the full exercise of an important and 
necessary power, which a previous decision of the 
same court had ascertained that she possessed. Thus 
the powers of the State governments, as to many im- 
portant objects, might be kept indeterminate and con- 
stantly liable to change, so that they would lose their 
efficiency, and forfeit all title to confidence and re- 
spect. It is true, that in this case, too, there is a 
possible corrective in the power to amend the Consti- 
tution. But that power is not with the aggrieved 
State alone ; it could be exerted only in connection 
with other States, whose aid she might not be able to 
command. And even if she could command it, the 
process would be too slow to afford effectual relief. It 
is impossible to imagine that any free and sovereign 
State ever designed to surrender her power of self- 
protection in a case like this, or ever meant to author- 
ize any other power to reduce her to a situation so 
helpless and contemptible.* 



* This want of uniformity and fixedness, in tlie decisions of courts, 
renders tlie Supreme Court the most unfit umpire that could be selected 
between the Federal Government and the States, on questions involving 
their respective rights and powers. Suppose that the United States should 
resolve to cut a canal through the territory of Virginia, and being resisted, 
the Supreme Court should decide that they had a right to do so. Suppose 
that, when the work was completed, a similar attempt should be made in 
Massachusetts, and being resisted, the same court should decide that they 
had no right to do so. The effect would be that the United States would 



182 THE FEDERAL GOVERNMENT : 

Yielding, therefore, to the Supreme Court a 1 ! the 
jurisdiction and authority which properly belongs to 
it, we cannot safely or wisely repose in it the vast trust 
of ascertaining, defining or limiting the sovereign 
powers of the States. 

Let us now follow the author in the enquiry, by 
what rules shall the Constitution be interpreted? 
Many of those which he has given are merely such as 
we apply to every instrument, and they do not, there- 
fore, require any particular examination. The princi- 
pal one, and that from which he deduces many others 
as consequences, is this : " It is to be construed as a 
frame or fundamental law of government, established 
by the people of the United States, according to their 
own free pleasure and sovereign will. In this respect, 
it is in no wise distinguishable from the constitutions 
of the State governments." That our Constitution is 
" a frame of government " will scarcely be denied by 



possess a right in one State which they did not possess in another. Snppose 
that Virginia should impose a tax on the arsenals, dock-yards, &c, of the 
United States within her territory, and that, in a suit to determine the 
right, the Supreme Court should decide in favor of it. Suppose that a like 
attempt should be made by Massachusetts, and, upon a similar appeal to 
that court, it should decide against it ; Virginia would enjoy a right in re- 
ierence to the United States, which would be denied to Massachusetts. 
Other cases may be supposed, involving like consequences, and showing 
the absurdity of submitting to courts of justice the decision of controversies 
between governments, involving the extent and natui e of their powers. I 
know that the decisions of the Supreme Couit on const:tutonal questions 
have been very consistent and uniform : but that afford* no proof that they 
will be so through all time to come. It is enough for the purposes of the 
present argument, that they may be otherwise. 



ITS TRUE NATURE AND CHARACTER. 183 

any one, and this, whether it be in its nature federa- 
tive or consolidated. It is, also, as in every other 
constitution of government, " a fundamental law." It 
is the acknowledged basis of all federal power and au- 
thority, the sole chart by which federal officers are to 
direct their course. But all this leaves the enquiry 
still open, what is this fundamental law, what is the 
course indicated by the chart of federal power, and 
how is it to be ascertained ? Judge Story seems to 
suppose that a full answer to this question may be 
found in the fact, that this frame or fundamental law 
of government was established by " the people of the 
United States, according to their free pleasure and 
sovereign will. ,, If the fact were really so, it would 
undoubtedly exert an important influence, and would 
go far to justify his construction of the Constitution. 
We here discern the usefulness and necessity of that 
hi torical enquiry, which has just been finished. 
From that enquiry, we learn, distinctly and without 
doubt, that the Constitution was not established by 
" the people of the United States," and, consequently, 
that it does not resemble, in that respect, the consti- 
tutions of the States. There is no such analogy be- 
tween them, as will presently be shown, as to require 
that they should be construed by the same rules. The 
Constitution of the United States is to be considered as a 
compact or confederation between free, independent and 
sovereign States, and is to be construed as such, in all 
cases where its language is doubtful This is the leading 



184 THE FEDERAL GOVERNMENT ! 

and fundamental rule, from which the following may 
be deduced as consequences. 

It is to be construed strictly. Judge Story supposes 
that the Constitution of the United States ought to 
receive as favorable a construction as those of the 
States ; that it is to be liberally construed ; that 
doubtful words are to be taken most strongly in favor 
of the powers of the Federal Government ; and that 
there is "no solid objection to implied powers." All 
these are but inferences from the great rule which he 
first laid down, to wit, that the Constitution is to be 
considered as a frame of government, established by 
the people of the United States. As that rule cannot 
apply, because the fact on which it was founded is not 
true, it would seem to follow, as a necessary conse- 
quence, that the inferences deduced from it cannot be 
allowed. Nevertheless, they shall receive a more par- 
ticular consideration under the present enquiry. 

According to the principles of ail our institutions, 
sovereignty does not reside in any government what- 
ever, neither State nor federal. Government is re- 
garded merely as the agent of those who create it, 
and subject in all respects to their will. In the States 
the sovereign power is in the people of the States re- 
spectively ; and the sovereign power of the United 
States would, for the same reason, be in "the people 
of the United States," if there were any such people, 
known as a single nation, and the framers of the Fed- 
eral Government. We have already seen, however, 
that there are no such people, in a strict political 



ITS TRUE NATURE AND CHARACTER. 185 

sense, and that no such people had any agency in the 
formation of our Constitution, but that it was formed 
by the States, emphatically as such. It would be ab- 
surd, according to all principles received and acknow- 
ledged among us, to say that the sovereign power is 
in one party, and the power which is in the govern- 
ment is in another. The true sovereignty of the 
United States, therefore, is in the States, and not in 
the people of the United States, nor in the Federal 
Government. That government is but the agent 
through whom a portion of this sovereign power is 
exerted ; possessing no sovereignty itself, and exerting 
no power, except such only as its constituents have 
conferred on it. In ascertaining what these powers 
are, it is obviously proper that we should look only to 
the grant from which they are derived. The agent 
can claim nothing for itself, and on its own account. 
The Constitution is a compact, and the parties to it 
are each State, with each and every other State. The 
Federal Government is not a party, but is the mere 
creature of the agreement between the States as par- 
ties. Each State is both grantor and grantee, receiv- 
ing from each and all the other States precisely what, 
in its turn, it concedes to each and all of them. The 
rule, therefore, that the words are to be taken most 
strongly in favor of the grantee, cannot apply, be- 
cause, as each State is both grantor and grantee, it 
would give exactly as much as it would take away. 
The only mode, therefore, by which we may be certain 
to do no injustice to the intentions of the parties, is by 



186 THE FEDERAL GOVERNMENT I 

taking their words as the true exponents of their 
meaning. 

Judge Story thinks, however, that a more liberal 
rule ought to be adopted, in construing the Constitu- 
tion of the United States, because " the grant enures 
solely and exclusively for the benefit of the grantor 
himself ;" and therefore he supposes that " no one 
would deny the propriety of giving to the words of 
the grant a benign and liberal interpretation." Admit 
that it is so, and it would seem to follow that " the 
benefit of the grantor " requires that we should take 
from him as little as possible, and that an " interpre- 
tation of the words of the grant " would not be " be- 
nign and liberal " as to him, if it deprived him of any 
more of his rights and powers, than his oivn words 
prove that he intended to relinquish. It is evident 
that this remark of the author proceeds upon the 
leading idea, that the people of the United States are 
the only party to the contract ; an idea which, we 
have already seen, can by no means be justified or al- 
lowed. The States are parties ; each agreeing with 
each, and all the rest, that it will exercise, through a 
common agent, precisely so much of its sovereign 
rights and powers, as will, in its own opinion, be ben- 
eficial to itself when so exercised. The grant " enures 
to the sole and exclusive benefit of the grantor f and 
who but the grantor himself shall determine what 
benefit he had in view, and how far the grant shall ex- 
tend, in order to secure it ? This he has done, in the 
case before us, by the very terms of the grant. If 



ITS TRUE NATURE AND CHARACTER. 187 

you hold him bound by anything beyond those terms, 
you enable others to decide this matter for him, and 
may thus virtually abrogate his contract, and substi- 
tute another in its place. 

I certainly do not mean to say, that in construing 
the Constitution, we should at all times confine our- 
selves to its strict letter. This would, indeed, be 
sticking in the bark, to the worst possible purpose. 
Many powers are granted by that instrument, which 
are not included within its express terms, literally 
taken, but which are, nevertheless, within their ob- 
vious meaning. The strict construction for which I 
contend, applies to the intention of the framers of the 
Constitution ; and this may or may not require a 
strict construction of their words. There is no fair 
analogy as to this matter between the Federal Consti- 
tution and those of the States, although the author 
broadly asserts that they are not " distinguishable in 
this respect ;" and this will sufficiently appear from 
the following considerations : 

1. The entire sovereignty of each State is in the 
people thereof. When they form for themselves a 
constitution of government, they part with no portion 
of their sovereignty, but merely determine what por- 
tion thereof shall lie dormant, what portion they will 
exercise, and in what modes and by what agencies 
they will exercise it. There is but one party to such 
a government, to wit, the people of the State. What- 
ever power their government may possess, it is still 
the power of the people ; and their sovereignty re- 



188 THE FEDEKAL GOVERNMENT : 

mains the same. So far, therefore, there is "no solid 
objection to implied powers " in a State constitution ; 
because, by employing power in the government, you 
take no power from those who made the government. 

2. As government is the agent and representative of 
the sovereign power of the people, the presumption is, 
that they intend to make it the agent and representa- 
tive of all their power. In every frame of limited 
government, the people deny to themselves the exer- 
cise of some portion of their rights and powers, but 
the larger portion never lies thus dormant. In this 
case, therefore, (viz. : of a government established by 
an aggregate people,) the question naturally is, not 
what powers are granted, but what are denied ; and 
the rule of strict construction, if applied at all, should 
be applied only to the powers denied. This would 
have the effect of enlarging the powers of government, 
by limiting the restraints imposed on it. 

3. As it is fair to presume that a people absolutely 
sovereign, and having an unlimited right to govern 
themselves as they please, would not deny to them- 
selves the exercise of any power necessary to their 
prosperity and happiness, we should admit all fair 
and reasonable implications in favor of the govern- 
ment, because, otherwise, some power necessary to the 
public weal, might be dormant and useless. 

In these respects, there is no just analogy between 
the State constitutions and that of the United States. 

In the first place, the Constitution of the United 
States is not a frame of government to which there is 



ITS TRUE NATURE AND CHARACTER. 189 

but one party. The States are parties, each stipu- 
lating and agreeing with each and all the rest. Their 
agreement is, that a certain portion of that power 
which each is authorized to exercise within its own 
limits shall be exercised by their common agent, with- 
in the limits of all of them. This is not the separate 
power of each, but the joint power of all. In pro- 
portion, therefore, as you increase the powers of the 
Federal Government, you necessarily detract from the 
separate powers of the States. We are not to pre- 
sume that a sovereign people mean to surrender any 
of their powers ; still less should we presume that 
they mean to surrender them, to be exerted over them- 
selves, by a different sovereignty. In this respect, then, 
every reasonable implication is against the Federal 
Government. 

In the second place, the Constitution of the United 
States is not the primary social relation of those who 
formed it. The State governments were already or- 
ganized, and were adequate to all the purposes of 
the'r municipal concerns. The Federal Government 
was established only for such purposes as the State 
government could not answer, to wit: the common 
purposes of all the States. "Whether, therefore, the 
powers of that government be greater or less, the 
whole power of the States, (or so much thereof as they 
design to exercise at all,) is represented, either in the 
Federal Government or in their own. In this respect, 
therefore, there is no necessity to imply power in the 
Federal Government. 



190 THE FEDEEAL GOVERNMENT .* 

In the third place, whatever power the States have 
not delegated to the Federal Government, they have 
reserved to themselves. Every useful faculty of gov- 
ernment is found either in the one or the other. 
"Whatever the Federal Government cannot do for all 
the States, each State can do for itself, subject only to 
the restraints of its own constitution. No power, 
therefore, is dormant and useless, except so far only 
as the States voluntarily decline to exert it. In this 
respect, also, there is no necessity to imply power in 
the Federal Government. 

In all these particulars, the Federal Constitution is 
clearly " distinguishable from the constitutions of the 
State governments." The views just presented sup- 
port this obvious distinction, that in the State consti- 
tutions every power is granted which is not denied ; 
in the Federal Constitution, every power is denied 
which is not granted. There are yet other views of 
the subject, which lead us to the same conclusion. 

The objects for which the Federal Government was 
established, are by no means equal in importance to 
those of the State constitutions. It is difficult to 
imagine any necessity for a Federal Government at all, 
except what springs from the relation of the States to 
foreign nations. A union among them is undoubtedly 
valuable for many purposes. It renders them stronger 
and more able to resist their enemies ; it attracts to 
them the respect of other countries, and gives them 
advantages in the formation of foreign connections ; 
it facilitates all the operations of war, of commerce 



ITS TRUE NATURE AND CHARACTER. 191 

and of foreign diplomacy. But these objects, although 
highly important, are not so important as those great 
rights which are secured t 5 us by the State constitu- 
tions. The States might singly protect themselves ; 
singly form their foreign connections, and singly regu- 
late their commerce ; not so effectually, it is true, but 
effectually enough to afford reasonable security to 
their independence and general prosperity. In addi- 
tion to all this, we rely exclusively on the State gov- 
ernments for the security of the great rights of life, 
liberty and property. All the valuable and interest- 
ing relations of the social state spring from them. 
They give validity to the marriage tie ; they prescribe 
the limits of parental anthority ; they enforce filial 
duty and obedience ; they limit the power of the mas- 
ter, and exact the proper duties of the servant. Their 
power pervades all ranks of society, restraining the 
strong, protecting the weak, succoring the poor, and 
lifting up the fallen and helpless. They secure to all 
persons an impartial administration of public justice. 
In all the daily business of life, we act under the pro- 
tection and guidance of the State governments. They 
regulate and secure our rights of property ; they en- 
force our contracts and preside over the peace and 
safety of our firesides. There is nothing dear to our 
feelings or valuable in our social condition, for which 
we are not indebted to their protecting and benignant 
action. Take away the Federal Government alto- 
gether, and still we are free, our rights are still pro- 
tected, our business is still regulated, and we still en- 



192 THE FEDERAL GOVERNMENT ! 

joy all the other advantages and blessings of estab- 
lished and well-organized government. But if you 
take away the State governments, what have you left ? 
A Federal Government, which can neither regulate 
your industry, secure your property, nor protect your 
person ! Surely there can be no just reason for steal- 
ing, by liberal constructions and implications, from 
these beneficent State governments, any portion of 
their power, in order to confer it on another govern- 
ment, which, from its very organization, cannot possi- 
bly exert it for equally useful purposes. A strict con- 
struction of the Constitution will give to the Federal 
Government all the power which it can beneficially 
exert, all that is necessary for her to possess, and all 
that its framers ever designed to confer on it. 

To these views of the subject we may add, that there 
is a natural and necessary tendency in the Federal , 
Government to encroach on the rights and powers of 
the States. As the representative of all the States, it 
affords, in its organization, an opportunity for these 
combinations, by which a majority of the Slates may 
oppress the minority, against the spirit or even the 
letter of the Constitution. There is no danger that 
the Federal Government will ever be too weak. Its 
means of aggrandizing itself are so numerous, and its 
temptations to do so are so strong, that there is not 
the least necessity to imply any new power in its favor. 
The States, on the contrary, have no motive to en- 
croach on the Federal Government, and no power to 
do so, even if they desired it. In order, therefore, to 



ITS TRUE NATURE AND CHARACTER. 193 

preserve the just balance between them, we should in- 
cline, in every doubtful case, in favor of the States ; 
confident that the Federal Government has always the 
inclination, and always the means, to maintain itself 
in all its just powers. 

The Constitution itself suggests that it should be 
strictly and not liberally construed. The tenth amend- 
ment provides, that " the powers not delegated to the 
United States, nor prohibited to the States, by the 
Constitution, are reserved to the States and the peo- 
ple." There was a corresponding provision in the 
Articles of Confederation, which doubtless suggested 
this amendment. It was considered necessary, in 
order to prevent that latitude of construction which 
was contended for by one of the great political par- 
ties of the country, and much dreaded and strenuous- 
ly opposed by the other. In the Articles of Confeder- 
ation all " rights, jurisdiction and powers " are re- 
served, except only such as are expressly delegated ; 
but in the Constitution the word " expressly " is omit- 
ted. Judge Story believes, from this fact, that it was 
the intention of the framers of the tenth amendment 
to leave " the question, whether the particular power 
which is the subject of contest, has been delegated to 
one government or prohibited to the other, to depend 
upon a fair construction of the whole instrument ;" 
doubtless intending by the word " fair," a construction 
as liberal as would be applied to any other frame of 
government. This argument is much relied on, and is 
certainly not without plausibility, but it loses all its 



194 THE FEDERAL GOVERNMENT : 

force, if the omission can be otherwise satisfactorily 
accounted for. The Constitution provides that Con- 
gress shall have power to pass all laws which shall be 
necessary and proper for carrying into effect the 
various powers which it grants. If this clause confers 
no additional faculty of any sort, it is wholly useless 
and out of place ; the fact that it is found in the Con- 
stitution is sufficient proof that some effect was in- 
tended to be given to it. It was contemplated that, 
in executing the powers expressly granted, it might be 
necessary to exert some power not enumerated, and as 
to which some doubt might, for that reason, be enter- 
tained. For example, the power to provide a navy is 
not, in itself, the power to build a dry dock ; but, as 
dry docks are necessary and proper means for pro- 
viding a navy, Congress shall have power to authorize 
the construction of them. But if the word " express- 
ly " had been used in the tenth amendment, it would 
have created a very rational acd strong doubt of this. 
There would have been, at least, an apparent repug- 
nance between the two provisions of the Constitution; 
not a real one, I admit, but still sufficiently probable 
to give rise to embarrassing doubts and disputes. 
Hence the necessity of omitting the word " expressly/' 
in the tenth amendment. It left free from doubt and 
unaffected the power of Congress to provide the neces- 
sary and proper means of executing the granted pow- 
ers, while it denied to the Federal Government every 
power which was not granted. The same result was 
doubtless expected from this amendment of the Con"" 



ITS TRUE NATURE AND CHARACTER. 195 

Btitution, which was expected from the corresponding 
provision in the Articles of Confederation ; and the 
difference in the terms employed is but the necessary 
consequence of the difference in other provisions of 
the two systems. 

Strictly speaking, then, the Constitution allows no 
implication in favor of the Federal Government, in any 
case whatever. Every power which it can properly 
exert is a granted power. All these are enumerated in 
the Constitution, and nothing can be constitutionally 
done, beyond that enumeration, unless it be done as 
a means of executing some one of the enumerated 
powers. These means are granted, not implied ; they 
are given as the necessary incidents of the power 
itself, or, more properly speaking, as component parts 
of it, because the power would be imperfect, nuga- 
tory and useless, without them. It is true, that in 
regard to these incidental powers, some discretion 
must, of necessity, be left with the government. But 
there is at the same time, a peculiar necessity that a 
strict construction should be applied to them ; be- 
cause that is the precise point at which the govern- 
ment is most apt to encroach. Without some strict, 
definite and fixed rules upon the subject, it would be 
left under no restraint, except what is imposed by its 
own wisdom, integrity and good faith. In proportion 
as a power is liable to be abused, should we increase 
and strengthen the checks upon it. And this brings 
'us to the enquiry, what are these incidental powers, 



196 THE FEDERAL GOVERNMENT : 

and by what rules are they to be ascertained and de- 
fined? 

The only source from which these incidental pow- 
ers are derived is that clause of the Constitution 
which confers on Congress the power " to make all 
laws which are necessary and proper for carrying into 
execution the foregoing powers, and all other powers 
vested by this Constitution in the government of the 
United States, or in any department or officer there- 
of." The true character of this clause cannot be bet- 
ter given than in the words of Judge Story himself : 
" It neither enlarges any power specially granted, nor 
is it a grant of any new power to Congress. But it 
is merely a declaration, for the removal of all uncer- 
tainty, that the means of carrying into execution, 
those otherwise granted, are included in the grant." 
His general reasoning upon the subject is very lucid, 
and, to a certain extent, correct and convincing. He 
contends that the word " necessary " is not to be 
taken in its restricted sense, as importing absolute 
and indispensable necessity, but is to be understood 
in the sense of "convenient," "useful," "requisite;" 
as being such that, without them, " the grant would 
be Lugatory." The dangerous latitude implied by 
this construction, he thinks sufficiently restrained by 
tjie additional word " proper," which implies that the 
means shall be " constitutional and bona fide appropri- 
ate to the end." In all this he is undoubtedly cor- 
rect ; but the conclusion which he draws from it can- 
not be so readily admitted. " If," says he, " there be 



ITS TKUE NATURE AND CHARACTER. 197 

any general principle which is inherent in the very 
definition of government, and essential to every seep 
of the progress to be made by that of the United 
States, it is that every power vested in the government 
is, in its nature, sovereign, and includes, by force of 
the term, a right to employ all the means requisite, 
and fairly applicable to the attainment of the end of 
such power, unless they are excepted in the Constitu- 
tion, or are immoral, or are contrary to the essential 
objects of political society." This is by no means a 
legitimate conclusion from his own fair and forcible 
reasoning. The doctrine here is, in effect, that the 
Federal Government is absolutely unrestricted in the 
selection and use of the means of executing its own 
powers, except only so far as those means are excepted 
in the Constitution. Whether or not they are " re- 
quisite," " fairly applicable to the attainment of the 
end of such power," "immoral or contrary to the es- 
sential objects of political society," all these are ques- 
tions which the government alone can decide, and, of 
course, as their own judgment and discretion are 
their only rule, they are under no sort of limitation or 
control in these respects. The standards of political 
morality, of public convenience and necessity, and of 
conformity to the essential objects of society, are quite 
too fluctuating and indeterminate to be relied on, by 
a free people, as checks upon the powers of their 
rulers. The only real restriction, then, which the 
author proposes in the above passage, is that which 
may be found in the fact, that the proposed means 
are "excepted" in the Constitution; and this is direct- 



198 THE FEDERAL GOVERNMENT ! 

ly contrary to the letter and spirit of that instrument* 
The Federal Government possesses no power which is 
not " delegated ;" " the powers not delegated to the 
United States by the Constitution, nor prohibited by 
it to the States, are reserved by the States respective- 
ly, or to the people." Judge Story's idea is, that 
every thing is granted which is not excepted; whereas, 
the language of the tenth amendment is express, that 
every thing is excepted which is not granted. If the 
word " excepted " is to be understood in this sense, 
the author's idea is correct ; but this does not accord 
with the general scope of his opinions and reasoning. 
He approaches much nearer to the true rule in the 
following passage : " Let the end be legitimate ; let 
it be within scope of the Constitution ; and all means 
which are appropriate, which are plainly adapted to 
the end, and which are not prohibited, but are con- 
sistent with the letter and spirit of the instrument, are 
constitutional." The words in italics are all important 
in the matter, and give to the passage a meaning 
wholly different from that of the passage first quoted. 
Judge Story's error is equally great, and far more 
dangerous, in supposing that the means of executing 
its powers are conferred on the government. The 
general proposition is true, as he has stated it ; but it 
is not true in the application which he has made of it 
to our government. He regards the tenth amend- 
ment as altogether unnecessary, and tells us, in ex- 
press terms, that the powers of the government would 
be exactly the same with or without it. This is a 



ITS TRUE NATURE AND CHARACTER. 199 

great and obvious mistake. The tenth amendment 
was wisely incorporated into the Constitution for the 
express purpose of denying to the government that 
unbounded discretion, in the selection and use of its 
means, for which it contends. The power to make all 
laws necessary and proper for carrying into effect the 
granted powers is conferred on Congress alone ; it is 
exclusively a legislative power. So far, therefore, as 
the government is concerned, it derives no power from 
this clause ; and the same is true of its several de- 
partments. They have no discretion in the selection 
of any incidental means of executing their several 
trusts. If they need the use of such means, they 
must apply to Congress to furnish them ; and it is 
discretionary with that body whether to furnish them 
or not. All this is perfectly clear from the very 
language of the Constitution, and the propriety of 
such a provision must be apparent to every one. If 
power could be implied in favor of such a govern- 
ment as ours, it would, if nothing were said to the 
contrary, be implied in favor of every department and 
officer thereof, to the execution of whose duties it 
might seem to be necessary. This would be a wide 
extent of discretion, indeed ; so wide, that it would 
render all the limitations of the Constitution nugatory 
and useless. It is precisely this result which was in- 
tended to be prevented by the clause in question. 
The States were unwilling to entrust such a discretion 
either to the government, or to the several depart- 
ments or officers thereof. They were willing to confer 



200 THE FEDERAL GOVERNMENT : 

it on Congress alone ; on the legislative department, 
the more immediate representatives of the States and 
their people, who would be most apt to discharge the 
trust properly, because they had the least temptation 
to abuse it. It is not true, then, as our author sup- 
poses, or, at least, it is not true of our system, that 
" every power in the government is, in its nature, sov- 
ereign, and includes, by force of the term, a right to 
employ all the means requisite, and fairly applicable 
to the attainment of the ends of such power, unless 
they are excepted in the Constitution, or forbidden by 
some consideration of public morals, or by their un- 
suitableness to the proper objects of government. ,, In 
our government, the means are at the disposal of one 
department only, which may either grant or withhold 
them at its pleasure. 

What, then, are the proper limitations of the power 
of Congress in this respect ? This has always been a 
subject of great difficulty, and of marked difference of 
opinion, among politicians. I cannot hope that I shall 
be able perfectly to disembarrass it ; but I think, 
nevertheless, that there are a few plain rules, the pro- 
priety of which all will admit, and which may mate- 
rially aid us in the formation of a sound opinion upon 
the subject. 

In the first place, then, it is to be observed that 
Congress has no power under this clause of the Con- 
stitution, except to provide the means of executing the 
granted powers. It is not enough that the means 
adopted are sufficient to that end ; they must be 



ITS TRUE NATUEE AND CHARACTER. 201 

adopted bona fide, with a view to accomplish it. Con- 
gress has no right to use for the accomplishment of 
one purpose, means ostensibly provided for another. 
To do so would be a positive fraud, and a manifest 
usurpation ; for, if the purpose be lawful, it may be 
accomplished by its own appropriate means, and if it 
be unlawful, it should not be accomplished at all. It 
is quite obvious that, without this check, Congress 
may, by indirection, accomplish almost any forbidden 
object ; for among the great variety of means adapted 
to carry out the granted powers, some may be found 
equally calculated to effect, either by their direct or 
indirect action, purposes of a wholly different charac- 
ter and tendency. It is, therefore, of the utmost im- 
portance to the preservation of the true principles of 
the Constitution, that strict faith should be kept upon 
this point. 

In the second place, the means provided must not 
only be " necessary," but they must also be " proper." 
If the word " necessary " stood alone, it would be 
susceptible of a very extended meaning, and would 
probably be considered as embracing powers which it 
never was in the contemplation of the framers of the 
Constitution to grant. It was necessary, then, to 
limit and restrain it by some other word, and the 
word " proper " was very happily selected. This word 
requires that the means selected shall be strictly con- 
stitutional. In ascertaining this, we must have regard 
not only to the express provisions of the Constitution, 
but also to the general nature and character of our 



202 THE FEDERAL GOVERNMENT .* 

institutions. Ours is a, free government, which implies 
that it is also an equal government ; it therefore au- 
thorizes the employment of no means for the execu- 
tion of its powers, except such as are consistent with 
the spirit of liberty and equality. Ours is a con- 
federated government ; it therefore authorizes no 
means which are inconsistent with the distinct sov- 
ereignty of the States, the confederating powers. 
Ours is a government of " delegated " powers, limited 
and specifically enumerated ; it therefore authorizes 
no means which involve, in the use of them, any dis- 
tinct substantive power, not granted. This single rule, 
if fairly and honestly observed, will go far to remove 
many serious difficulties upon this point, and will de- 
prive the Federal Government of many important 
powers which it has hitherto exercised, and which are 
still claimed for it, by Judge Story, and the whole 
political world to which he belongs. The propriety 
and, indeed, the absolute necessity of the rule, appear 
to me to be obvious. If powers not granted might be 
used as means of executing the granted powers, it is 
manifest that no power whatever could be considered 
as denied. It is not enough that there is no apparent 
unconstitutionality in the use of such means, in the 
particular case. If they involve a principle which will 
authorize the use of ungranted powers in any other 
case, they are forbidden by the Constitution. To il- 
lustrate this idea by an example : Congress has power 
to regulate commerce among the several States. This 
is supposed by some to give them power to open 



ITS TRUE NATURE AND CHARACTER. 203 

channels of commerce, by making roads, cutting canals 
etc., through the territories of the States. But this 
is a substantive power in itself, not granted to the 
United States, but reserved to the States respectively, 
and therefore is not allowed as a means of regulating 
commerce among the States. Let us suppose, how- 
ever, that the opening of roads and cutting of canals 
are the very best means of facilitating and regulating 
commerce among the States, and that there is nothing 
in the language of the Constitution to forbid it ; we 
are still to inquire what farther powers would be 
necessarily implied, as incidents of this. We find that 
the power to open a road through a State, implies the 
power to keep it in repair : to impose fines and penal- 
ties on those who injure it, and, consequently, to en- 
force those fines and penalties by the exercise of a 
jurisdiction over it. We find, also, that the power to 
make such a road, implies the power to locate it ; and, 
as there is nothing to control the discretion of Con- 
gress in this respect, there is nothing to forbid them 
to locate their road, upon the bed of a State canal, or 
along the whole course of a State turnpike. The effect 
of this would be to transfer to the United States, 
against the consent of the S'.ate, and without compen- 
sation, improvements made by the State within her 
own territory and at her own expense. Nay, the su- 
premacy claimed for the powers of Congress in this 
respect would, upon the same principle, authorize them 
to run a road through the centre of a State capital, or 
to cover half her territory with roads and canals, over 



204 THE FEDERAL GOVEItNMENT ! 

which the State could exert neither jurisdiction nor 
control. The improvements of individuals, too, and 
of corporate bodies made under the authority of State 
laws, would thus be held at the mercy of the United 
States. "When we see, then, that the means of regu- 
lating commerce among the States would necessarily 
imply these vast and forbidden powers, we should un- 
hesitatingly reject them as unconstitutional. This 
single instance, given by way of example and illustra- 
tion, presents a rule which, if strictly adhered to in 
all analogous cases, would go far to remove the diffi- 
culties, and to prevent the contests, which so often 
arise on this part of the Constitution. 

These few simple rules are, in their nature, techni- 
cal, and may at all times be easily applied, if Congress 
will observe good faith in the exercise of its powers. 
There is another of a more enlarged and liberal char- 
acter, which the word " proper " suggests, and which, 
if applied with sound judgment, perfect integrity and 
impartial justice, will render all others comparatively 
unnecessary. It exacts of Congress an extended and 
fair view of the relations of all the States, and a 
strictly impartial regard to their respective rights and 
interests. Although the direct action of a granted 
power, by the means also granted in the Constitution, 
may be both unequal and unjust, those means would, 
nevertheless, be perfectly constitutional. Such injus- 
tice and inequality would be but the necessary conse- 
quence of that imperfection, which characterizes every 
human institution, and to which those who undertake 



ITS TRUE NATURE AND CHARACTER. 205 

to prescribe specific rules to themselves are bound to 
submit. But when Congress are called on to pre- 
scribe new means of executing a granted power, none 
are "proper," and therefore none are constitutional 
which operate unequally and unjustly among the 
States or the people. It is true that perfect and ex- 
act equality in this respect is not to be expected ; but 
a near approach to it will always be made by a wise 
and fair legislation. Great and obvious injustice and 
inequality may at ail times be avoided. No " means " 
which involve these consequences can possibly be con- 
sidered " proper," either in a moral or in a constitu- 
tional sense. It requires no high intellectual faculty 
to apply this rule ; simple integrity is all that is re- 
quired. 

I have not thought it necessary to follow the author 
through his extended examination of what he terms 
the incidental powers of Congress, arising under the 
clause of the Constitution we are examining. It would 
be indeed an endless task to do so ; for I am unable 
to perceive that he proposes any limit to them at all. 
Indeed, he tells us in so many words, that "< upon the 
whole, the result of the most careful examination of 
this clause is, that if it does not enlarge, it cannot be 
construed to restrain the powers of Congress, or im- 
pair the right of the legislature to use its best judg- 
ment in the selection of measures to carry into execu- 
tion the constitutional powers of the national govern- 
ment." This is, indeed, a sweep of authority, bound- 
less and unrestricted. The " best judgment " of Con- 



206 THE FEDERAL GOVERNMENT : 

gress is the only limit proposed to its powers, wliilst 
there is nothing to control that judgment, nor to cor- 
rect its errors. Government is abandoned emphati- 
cally to its own discretion ; for even if a corrective be 
supposed to exist with the people, that corrective can 
never be applied in behalf of an oppressed minority. 
Are the rules which I have proposed indeed nothing ? 
Is no effect whatever to be given to this word " pro- 
per," in this clause of the Constitution ? Can Judge 
Story possibly be right in supposing that the Constitu- 
tion would be the same without it as with it ; and that 
the only object of inserting it was " the desire to re- 
move all possible doubt respecting the right to legis- 
late on the vast mass of incidental powers which must 
be involved in the Constitution, if that instrument be 
not a splendid pageant, or a delusive phantom of sov- 
ereignty ?" It was, indeed, the object of the framers 
of the Constitution " to remove all possible doubt " 
from this subject. They desired neither a splendid 
pageant nor a splendid government. They knew that 
without this restriction ours would be both ; and as 
powerful as splendid. They did not design that any 
power with which they thought proper to clothe it 
should be inoperative for want of means to carry it 
into execution ; but they never designed to give it the 
boundless field of its own mere will, for the selection 
of those means. Having specifically enumerated its 
powers, as far as was practicable, they never designed 
to involve themselves in the absurdity of removing, by 
a single clause, every restriction which they had pre- 



ITS TRUE NATURE AND CHARACTER. 207 

viously imposed. They meant to assure their agent 
that, while none of the powers with which they had 
thought proper to clothe it should be nugatory, none 
of them should be executed by any means which were 
not both " necessary " and " proper." 

The lovers of a strong consolidated government 
have labored strenuously, and I fear with too much 
success, to remove every available restriction upon the 
powers of Congress. The tendency of their princi- 
ples is to establish that legislative omnipotence which 
is the fundamental principle of the British Constitu- 
tion, and which renders every form of written consti-** 
tution idle and useless. They suffer themselves to be 
too much attracted by the splendors of a great central 
power. Dazzled by these splendors, they lose sight 
of the more useful, yet less ostentatious purposes of 
the State governments, and seem to be unconscious 
that, in building up this huge temple of federal power, 
ihey necessarily destroy those less pretending struc- 
tures from which alone they derive shelter, protection 
and safety. This is the ignis fatuus which has so often 
deceived nations, and betrayed them into the slough 
of despotism. On all such, the impressive warning 
of Patrick Henry, drawn from the lessons of all ex- 
perience, would be utterly lost : "Those nations who 
have gone in search of grandeur, power and splendor, 
have always fallen a sacrifice and been the victims of 
their O^vn folly. While they acquired those visionary 
blessings, they lost their freedom." The consolida- 
tionists forget these wholesome truths, in their eager- 



208 THE FEDERAL GOVERNMENT ! 

ness to invest the federal government with every 
power which is necessary to realize their visions in a 
great and splendid nation. Hence they do not dis- 
criminate between the several clashes of federal pow- 
ers, but contend for aH of them, with the same blind 
and devoted zeal. It is remarkable that, in the exer- 
cise of all those functions of the Federal Government 
which concern our foreign relations, scarcely a case 
can be supposed, requiring the aid of any implied or 
incidental power, as to which any serious doubt can 
arise. The powers of that government, as to all such 
matters, are so distinctly and plainly pointed out in 
the very letter of the Constitution, and they are so 
ample for all the purposes contemplated^ that it is only 
necessary to understand them according to their plain 
meaning, and to exercise them according to their ac- 
knowledged extent. No auxiliaries are required ; the 
government has only to go on in the execution of its 
trusts, with powers at once ample and unquestioned. 
It is only in matters which concern our domestic 
policy, that any serious struggle for federal power has 
ever arisen, or is likely to arise. Here, that love of 
splendor and display, which deludes so large a portion 
of mankind, unites with that self-iuterest by which all 
mankind are swayed, in aggrandizing the Federal 
Government, and adding to its powers. He who 
thinks it better to belong to a splendid and showy 
government, than to a free and happy one, naturally 
seeks to surround all our institutions with a gaudy 
pageantry, which belongs only to aristocratic or mon- 



ITS TRUE NATURE AND CHARACTER. 209 

archical systems. But the great struggle is for those 
various and extended powers, from the exercise of 
•which avarice may expect its gratifications. Hence 
the desire for a profuse expenditure of the public mo- 
ney, and hence the thousand schemes under the name 
of internal improvements, by means of which hungry 
contractors may plunder the public treasury, and wily 
speculators prey upon the less skillful and cunning. 
And hence, too, another sort of legislation, the most 
vicious of the whole, which, professing a fair and 
legitimate object of public good, looks, really, only to 
the promotion of private interests. Ifc is thus that 
classes are united in supporting the powers of govern- 
ment, and an interest is created strong enough to car- 
ry all measures and sustain all abuses. 

Let it be borne in mind that, as to all these subjects 
of domestic concern, there is no absolute necessity that 
the Federal Government should possess any power at 
all. They are all such as the State governments are 
perfectly competent to manage ; and the most compe- 
tent, because each State is the best judge of what is 
useful or necessary to itself. There is, then, no room 
to complain of any want of power to do whatever the 
interests of the people require to be done. This is 
the topic upon which Judge Story has lavishly ex- 
pended his strength. Looking upon government as 
a machine contrived only for the public good, he 
thinks it strange that it should not be supposed to 
possess all the faculties calculated to answer the pur- 
poses of its creation. And surely it would be strange 



210 THE FEDERAL GOVERNMENT : 

if it were, indeed, so defectively constructed. But 
the author seems to forget that in our system the 
Federal Government stands not alone. That is but a 
part of the machine ; complete in itself, certainly, and 
perfectly competent, without borrowing aid from any 
other source, to work out its own part of the general 
result. But it is not competent to work out the whole 
result. The State governments have also their part to 
perform, and the two together make the perfect work. 
Here, then, are all the powers which it is necessary 
that government should possess ; not lodged in one 
place, but distributed ; not the power of the State 
governments, nor of the Federal Government, but the 
aggregate of their several and respective powers. In 
the exercise of those functions which the State gov- 
ernments are forbidden to exercise, the Federal Gov- 
ernment need not look beyond the letter of its charter 
for any needful power ; and in the exercise of any 
other function, there is still less necessity that it 
should do so ; because, whatever power that govern- 
ment does not plainly possess, is plainly possessed by 
the State governments. I speak, of course, of such 
powers only as may be exercised either by the one or 
the other, and not of such as are denied to both. I 
mean only to say, that so far as the States and the 
people have entrusted power to government at all, 
they have done so in language plain and full enough 
to render all implication unnecessary. Let the Fed- 
eral Government exercise only such power as plainly 
belongs to it, rejecting all such as is even doubtful, 



ITS TRUE NATTJEE AND CHARACTER. 211 

and it will be found that our system will work out all 
the useful ends of government, harmoniously and 
without contest, and without dispute, and without 
usurpation.* 

* In tills extended examination of the rales by which the Constitution 
Of the United States is to be interpreted, Judge Upshur has, we think, 
completely demolished the doctrines of Judge Story on that subject; 
but there is an important principle to be applied in the interpretation of 
all compacts and legal instruments which has not been made sufficiently 
plain. It is the rule laid down by Blackstone, that the intention of the 
parties to a compact is the key to its meaning. The terms and language 
must be referred to the time of its enactment, and must be taken as un- 
derstood by those who so employed them, and not according to any sub- 
sequent definition, (l Blackstone, 59, 60.) Thus the Constitution of the 
United States must be explained as those who made and framed it intend- 
ed. Their intention is the law. We sometimes hear such phrases as 
"New views of the Constitution," and "Progressive ideas" of the 
Constitution." But we are to seek for the meaning of that instru- 
ment, not in "new views," or in "progressive ideas" of its import, 
but in the old views of those who made it. We are to take into con- 
sideration the condition of the country at the time the Constitution was 
framed ttnd adopted, and the settled judicial and professional opinion im- 
mediately following its adoption. This rule has been often affirmed by 
the Supreme Court. (6 Wheaton, 416 ; 2 Peters, 7H ; 5 Cranch. 33 ; 3 
Dallas, 398.) 

Any subsequent construction of a law or instrument not in agreement 
with the settled intent of those who framed it, is to be disregarded. (5 
Peters, 281, 1.) 

The intention of the framers of the Constitution was that it should con- 
tinue as they framed it ; it was not designed as a temporary agreement, 
but as an everlasting law. (1 Wheaton, 326.) Its language is to be taken 
in its natural and obvious sense, and not in any novel and new construc- 
tion. (4 Wheaton, 415.) "Its spirit is to be respected not less than its let- 
ter, yet the spirit is to be collected chiefly by the words." (4 Wheaton, 262. 
" It was not intended to use language which would convey to the eye one 
idea, and after deep reflection impress on the mind another." (4 Wheaton, 
418.) Such were the rules by which the Constitution was interpreted by 
the Supreme Court undeviatingly from the foundation of the government 
to 1863. Since this last date a change has come over the spirit of the 



212 THE FEDERAL GOVERNMENT ! 

judiciary which is In violation of all the past rules of interpretation, and 
indeed of judicial proceedings among all enlightened nations. The doc- 
trine has been boldly proclaimed, by leading journals, that laws and com- 
pacts are to be construed so as to be in harmony with the •' will of the 
people," and judges have, in too many instances, succumbed to this mon- 
strous delusion. It amounts to the abrogation of all organic law, by sub- 
stituting the passions and fancies of the people iu its place. It has made 
the whims and the passions of a political party superior to the Constitu- 
tion of our country. It, indeed, amounts to the overthrow of all fixed 
and regular governments, and leaves the passions and fancies of an hour 
the only guarantees of liberty.— [C« C. B. 



ITS TRUE NATURE AND CHARACTER. 213 

OHAPTEB X. 



STRUCTURE AND FUNCTIONS OP THE HOUSE OP REPRESENT- 
ATIVES. 

I have thus finished the examination of the political 
part of these commentaries, and this is the only ob- 
ject with which this review was commenced. There 
are, however, a few topics yet remaining, of great pub- 
lic concern, and which ought not to be omitted. Some 
of these, it seems to me, have been presented by the 
author in false and deceptive lights, and others of 
them, from their intrinsic importance, cannot be too 
often pressed upon public attention. I do not pro- 
pose to examine them minutely, but simply to present 
them in a few of their strongest lights. 

In his examination of the structure and functions 
of the House of Representatives, Judge Story has 
given his views of that clause of the Constitution 
which allows representation to three-fifths of the 
slaves. He considers the compromise upon this sub- 
ject as unjust in principle, and decidedly injurious to 
the people of the non-slaveholding States. He ad- 
mits that aa equivalent for this supposed concession 
to the South was intended to be secured by another 
provision, which directs that " Representatives and 



214 THE FEDERAL GOVERNMENT : 

direct taxes shall be apportioned among the several 
States, according to their respective numbers ;" but he 
considers this provision " more specious than solid ; 
for while in the levy of taxes it apportions them on 
three-fifths of persons not free, it on the other hand, 
really exempts the other two-fifths from being taxed 
at all as property. Whereas, if direct taxes had been 
apportioned, as upon principle they ought to be, ac- 
cording to the real value of property within the State, 
the whole of the slaves would have been taxed as 
property. But a far more striking inequality has been 
disclosed by the practical operations of the govern- 
ment. The principle of representation is constant 
and uniform ; the levy of direct taxes is occasional 
and rare. In the course of forty years, no more than 
three direct taxes have been levied, and those only 
under very extraordinary and pressing circumstances. 
The ordinary expenditures of the government are, and 
always have been, derived from other sources. Im- 
posts upon foreign importations have supplied, and 
will generally supply, all the common wants ; and if 
these should not furnish an adequate revenue, excises 
are next resorted to, as the surest and most convenient 
mode of taxation. Direct taxes constitute the last re- 
sort ; and, as might have been foreseen, would never 
be laid until other resources had failed." 

This is a very imperfect, and, as it seems to me, 
not a very candid view of a grave and important sub- 
ject. It would have been well to avoid it altogether, 
if it had been permitted ; for the public mind needs 



ITS TRUE NATURE AND CHARACTER. 215 

no encouragement to dwell, with unpleasant reflec- 
tions, upon the topics it suggests. In an examination 
of the Constitution of the United States, however, 
some notice of this peculiar feature of it was unavoid- 
able ; but we should not have expected the author to 
dismiss it with such criticism only as tends to show 
that it is unjust to his own peculiar part of the coun- 
try. It is manifest to every one that the arrangement 
rests upon no particular principle, but as a mere com- 
promise between conflicting interests and opinions. 
It is much to be regretted that it is not on all hands 
acquiesced in and approved, upon that ground ; for 
no public necessity requires that it should be discuss- 
ed ; and it cannot now be changed without serious 
danger to the whole fabric. The people of the slave- 
holding States themselves have never shown a dispo- 
sition to agitate the question at all, but, on the con- 
trary, have generally sought to avoid it. It has, how- 
ever, always " been complained of as a grievance," by 
the non-slaveholding States, and that too in language 
which leaves little doubt that a wish is very generally 
entertained to change it. A grave author, like Judge 
Story, who tells the people, as it were ex cathedra, that 
the thing is unjust in itself, will scarcely repress the 
dissatisfaction which such an announcement, falling in 
with preconceived opinions, will create, by a simple 
recommendation to acquiesce in it as a compromise, 
tending upon the whole to good results. His re- 
marks may render the public mind more unquiet than 
it now is ; they can scarcely tranquilize or reconcile 



216 THE FEDERAL GOVERNMENT ! 

it. For myself, I am very far from wishing to bring 
the subject into serious discussion, with any view to 
change ; but I cannot agree that an arrangement, ob- 
viously injurious to the South, should be held up as 
giving her advantages of which the North has reason 
to complain. 

I will not pause to inquire whether the rule appor- 
tioning representatives according to numbers, which, 
after much contest, was finally adopted by the con- 
vention, be the correct one or not. Supposing that it 
is so, the rule which apportions taxation in the same 
way, follows as a matter of course. The difficulties 
under which the convention seem to have labored, in 
regard to this subject, may well excite our surprise, at 
the present day. If the North really supposed that 
they conceded anything to the South, by allowing re- 
presentation to three-fifths of their slaves, they were 
certainly but poorly compensated for the concession, 
by that provision of the Constitution which appor- 
tions taxation according to representation. This 
principle was universally acknowledged throughout 
the United States, and is, in fact, only a modification 
of the great principle upon which the revolution itself 
was based. That taxation should be apportioned to 
representation, results from the federative character 
of the government ; and the fact that this rule was 
adopted, sustains the views which have been present- 
ed upon this point. It would have been indeed 
strange if some one State, having only half the re- 
presentatives of its neighbor State, might yet have 



ITS TEUE NATURE AND CHARACTER. 217 

been subjected to twice the amount of taxation ; Dela- 
ware, for instance, with her one representative, to twice 
the taxes of Pennsylvania, with her twenty-eight. A 
different rule from that which prevails might subject 
the weaker States to intolerable oppression. A com- 
bination among a few of the strongest States might, 
by a little management, throw the whole burthen of 
taxation upon the others, by selecting only such sub- 
jects of taxation as they themselves did not possess, 
or which they possessed only to a comparatively 
small extent. It never would have answered to en- 
trust the power of taxation to Congress, without some 
check against these and similar abuses, and no check 
could have been devised more effective or more ap- 
propriate than the provision now under consideration. 
All the States were interested in it, and the South 
much more deeply than the North. The slaves of the 
South afford the readiest of all possible subjects for 
this sort of practice, and it would be going too far to 
say that they would not, at some day or other, be 
selected for it, if this provision of the Constitution 
did not stand in the way. The southern States would 
certainly never have adopted the Constitution without 
some such guarantee as this against those oppressions 
to which their peculiar institutions exposed them ; 
and the weaker States, whether north or south, would 
never have adopted it, because it might lead to their 
utter annihilation in the confederacy. This provision 
of the Constitution, therefore, can scarcely be con- 
sidered as an equivalent for anything conceded by some 



218 THE FEDEKAL GOVERNMENT : 

of the States to others. It resulted necessarily from 
the very nature of their union ; it is an appropriate 
and necessary feature in every confederacy between 
sovereign States. We ought, then, to regard that 
provision of the Constitution which allows representa- 
tion to only three-fifths of the slaves, as a concession 
made by the South ; and one for which they received 
no equivalent, except in the harmony it served to pro- 
duce. 

Reverting to the rule that representation shall be 
apportioned to population, and supposing that all 
parties acquiesce in the propriety of it, upon what 
principle is the rule itself founded ? We have already 
seen that the w T hole country had adopted the princi- 
ple that taxation should be apportioned to representa- 
tion, and, of course, in fixing the principle of repre- 
sentation, the question of taxation was necessarily in- 
volved. There is no perfectly just rule of taxation but 
property ; every man should contribute to the support 
of the government, according to his ability, that is, 
according to the value of that property to which gov- 
ernment extends its protection. But this rule never 
can be applied in practice ; because it is impossible to 
discover what is the amount of the property, either of 
individuals or nations. In regard to States, popula- 
tion is the best measure of this value which can be 
found, and is, in most cases, a sufficiently accurate 
one. Although the wealth of a State cannot be ascer- 
tained, its people can be easily counted, and hence the 



ITS TRUE NATURE AND CHARACTER. 219 

number of its people gives the best rule for its repre- 
sentation, and consequently for its taxation. 

The population of a State is received as the best 
measure of the value of its property, because it is in 
general true, that the greater the number of people, 
the greater is the amount of productive industry. But 
of what consequence is it, by what sort of people this 
amount of production is afforded ? It was required 
that each State of our Union should contribute its due 
proportion to the common treasury ; a proposition as- 
certained by the number of its people. Of what con- 
sequence is it whether this contribution be made by 
the labor of slaves, or by that of freemen ? All that 
the States had a right to require of one another was, 
that each should contribute its allotted proportion ; 
but no State had a right to enquire from what par- 
ticular sources that contribution arose. Each State 
having a perfect right to frame its own municipal 
regulations for itself, the other States had no right to 
subject her to any disabilities or disadvantages on ac- 
count of them. If Massachusetts had a right to ob- 
ject to the representation of the slaves of Virginia, 
Virginia had the same right to object to the repre- 
sentation of the apprentices, the domestic servants, or 
even the mechanics of Massachusetts. The peculiar 
private condition and relations of the people of a 
State to one another could not properly be enquired 
into by any other State. That is a subject which each 
State regulates for itself ; and it cannot enter into the 
question of the influence which such State ought to 



220 THE FEDERAL GOVEKNMENT : 

possess, in the common government of all the States. 
It is enough that the State brings into the common 
stock a certain amount of wealth, resulting from the 
industry of her people. "Whether those people be 
men or women, bond or free, or bound to service 
for a limited time only, is the exclusive concern of the 
State itself, and is a matter with which the other 
States cannot intermeddle, without impertinence, in- 
justice and oppression. So far, then, from limiting 
representation to three-fifths of the slaves, they ought 
all to be represented, for all contribute to the aggre- 
gate of the productive industry of the country. And* 
even then, the rule would operate injuriously upon 
the slave-holding States ; for, if the labor of a slave 
be as productive as that of a free man, (and in agri- 
culture it is so,) the cost of supporting him is much 
less. Therefore, of the same amount of food and 
clothing, raised by the two classes, a greater surplus 
will remain of that of the slave, and of course a greater 
amount subject to the demands of the public necessi- 
ties. 

The remarks of John Adams, delivered in conven- 
tion,* are very forcible upon this point. According 
to Mr. Jefferson's report of them, he observed, " that 
the numbers of people are taken as an index of the 
wealth of the State, and not as subjects of taxation ; 
that, as to this matter it was of no consequence by 



* Mr. Adams was not a member of the convention. This speech was 
made in Congress in deliberating on the Articles of Confederation.— [Ed. 



ITS TRUE NATURE AND CHARACTER, 221 

what nam© you called your people, whether by that 
of freemen or of slaves ; that in some countries the 
laboring poor are called freemen, in others they are 
called slaves ; but that the difference, as to the state, 
was imaginary only. What matters it whether a land- 
lord, employing ten laborers on his farm, gives them 
annually as much money as will buy them the neces- 
saries of life, or gives them those necessaries at short 
hand ? The ten laborers add as much wealth to the 
State, increase its exports as much, in the one case as 
in the other. Certainly five hundred freemen produce 
no more profits, no greater surplus for the payment 
of taxes, than five hundred slaves. Therefore the 
State in which are the laborers called freemen should 
be taxed no more than that in which are the laborers 
called slaves. Suppose by an extraordinary opera- 
tion of nature or of law, one-half the laborers of a 
State could, in the course of one night, be transform- 
ed into slaves, would the State be made poorer or less 
able to pay taxes ? That the condition of the labor- 
ing poor in most countries, that of the fishermen par- 
ticularly of the northern States, is as abject as that of 
slaves. It is the number of laborers which produces 
the surplus for taxation, and numbers therefore, in- 
discriminately, are the fair index to wealth." 

It is obvious that these remarks were made for a 
very different purpose from that which I have in 
view. The subject then before the convention was 
the proper rule of taxation, and it was Mr. Adams's 
purpose to show that, as to that matter, slaves should 



222 THE FEDERAL GOVERNMENT I 

be considered only as people, and, consequently, as an 
index of the amount of taxable wealth. The conven- 
tion had not then determined that representatives and 
direct taxes should be regulated by the same ratio. 
When they did determine this, the remarks of Mr. 
Adams seem to me conclusive, to show that representa- 
tion of all the slaves ought to have been allowed ; nor 
do I see how those who held his opinions could possi- 
bly have voted otherwise. If slaves are people, as 
forming the measure of national wealth, and conse- 
quently of taxation, and if taxation and representa- 
tion be placed upon the same principle, and regulated 
by the same ratio, then that slaves are people, in 
fixing the ratio of representation, is a logical sequitur 
which no one can possibly deny. 

But it is objected that slaves are property, and for 
that reason, are not more entitled to representation 
than any other species of property. But they are 
also people, and, upon analogous principles, are enti- 
tled to representation as people. It is in this charac- 
ter alone that the non-slaveholding States have a 
right to consider them, as has already been shown, 
and in this character alone is it just to consider them. 
"We ought to presume that every slave occupies a 
place which, but for his presence, would be occupied 
by a free white man ; and, if this were so, every one, 
and not three-fifths only, would be represented. But 
the States who hold no slaves have no right to com- 
plain that this is not the case in other States, so long 
as the labor of the slave contributes as much to the 



ITS TRUE NATURE AND CHARACTER. 223 

common stock of productive industry, as the 1-bor of 
the white man. It is enough that a State possesses a 
certain number of people, of living, rational beings. 
We are not to enquire whether they be black or white, 
nor tawny, nor what are their peculiar relatious among 
one another. If the slave of the South be property, 
of what nature is that property, and what kind of in- 
terest has the owner in it ? He has a right to the 
profits of the slave's labor. And so, the master of an 
indented apprentice has a right to the profits of his 
labor. It is true, one holds the right for the life of 
the slave, and the other only for a time limited in the 
apprentice's indentures ; but this is a difference only 
in the extent, and not in the nature of the interest. It 
is also true, that the owner of a slave has, in most 
States, a right to sell him ; but this is only because the 
laws of the State authorize him to do so. And, in 
like manner, the indentures of an apprentice may be 
transferred if the laws of the State will allow it. In 
all these respects, therefore, the slave and the indent- 
ed apprentice stand upon precisely the same principle. 
To a certain extent, they are both property, and 
neither of them can be regarded as a free man ; and 
if the one be not entitled to representation, the other 
also should be denied that right. Whatever be the 
difference of their relations to the separate members 
of the community, in the eye of that community they 
are both people. Here, again, Mr. Adams shall speak 
for me ; and our country has produced few men who 
could speak more wisely : " A slave may, indeed, from 



224 THE FEDERAL GOVERNMENT ! 

the custom of speech, be more properly called the 
wealth of his master, than the free laborer might be 
called the wealth of his employer ; but as to the State, 
both are equally its wealth, and should therefore 
equally add to the quota of its tax." Yes ; and, con- 
sequently, they should equally add to the quota of its 
representation. 

Judge Story supposes that it is a great advantage 
to the slave-holding States that, while three-fifths of 
the slaves are entitled to representation, two-fifths are 
exempted from taxation. Why confine it to three- 
fifths ? Suppose that none of them were entitled to 
representation, the only consequence would be, that 
the State would have fewer representatives, and for 
that reason, would have a less amount of taxes to pay. 
In this case, all the slaves would be exempted from 
taxation ; and, according to our author, the slave- 
holding States would have great reason to be content 
with so distinguishing an advantage. And, for the 
same reason, every other State would have cause to 
rejoice at the diminution of the number of people, for 
although its representation would thereby be decreas- 
ed, its taxes would be decreased in the same propor- 
tion. This is the true mode of testing the author's 
position. It will be found that every State values the 
right of representation at a price infinitely beyond the 
amount of direct taxes to which that right may sub- 
ject it ; and, of course, the southern States have little 
reason to be thankful that two-fifths of their slaves 
are exempted from taxation, since they lose, in conse- 



ITS TRUE NATURE AND CHARACTER. 225 

quence of it, the right of representation to the same 
extent. The author, however, seems to have forgotten 
this connection between representation and taxation ; 
he looks only at the sources whence the Union may- 
draw wealth from the South, without enquiring into 
the principles upon which her representation may be 
enlarged. He thinks that direct taxes ought to be ap- 
portioned, "according to the real value of property 
within the State; in which case "the whole of the 
slaves would have been taxable as property." I have 
already remarked that this is, indeed, the true rule ; 
but it is wholly impracticable. It would be alike im- 
possible to fix a satisfactory standard of valuation, and 
to discover the taxable subjects. No approximation to 
the truth could be hoped for, without a host of officers, 
whose compensation would consume a large propor- 
tion of the tax, while, from the very nature of their 
duties, they would be forced into minute examinations* 
inconsistent with the freedom of our institutions, 
harassing and vexatious in their details, and leading 
inevitably to popular resistance and tumult. And this 
process must be gone through at every new tax ; for 
the relative wealth of the States would be continually 
changing. Hence, population has been selected as the 
proper measure of the wealth of the States. But, 
upon our author's principle, the South would be, in- 
deed, little better off than the lamb in the embrace of 
the wolf. The slaves are easily found ; they can 
neither be buried under ground, nor hid in the secret 
drawers of a bureau. They are peculiar, too, to a par- 



226 THE FEDEEAL GOVERNMENT I 

ticular region ; and other regions, having none of 
them, "would yet have a voice in fixing their value as 
subjects of taxation. That they would bear something 
more than their due share of this burthen, is just as 
certain as that man, under all circumstances, will act 
according to his nature. In the mean time, not being 
considered as people, they would have no right to be 
heard in their own defense, through their representa- 
tives in the federal councils. On the other hand, the 
non-slave-holding States would be represented in pro- 
portion to the whole numbers of their people, and 
would be taxed only according to that part of their 
wealth which they might choose to disclose, or which 
they could not conceal. And in the estimate of this 
wealth, their people would not be counted as taxable 
subjects, although they hold to their respective States 
precisely the same relation, as laborers and contribu- 
tors to the common treasury, as is held by the slaves 
of the South to their respective States. The rule, 
which considers slaves only as property to be taxed, 
and not as people to be represented, is little else than 
a rule imposing on the southern States almost the en- 
tire burthens of the government, and allowing to them 
only the shadow of influence in the measures of that 
government. 

The truth is, the slave-holding States have always 
contributed more than their just proportion to the 
wealth and strength of the country, and not less than 
their just proportion to its intelligence and public 
virtue. This is the only perfectly just measure of 



ITS TRUE NATURE AND CHARACTER. 227 

political influence ; but it is a measure which cannot 
be applied in practice. We receive population as the 
best practicable substitute for it ; and as all people , 
whatever be their private and peculiar conditions and 
relations, are presumed to contribute their share to 
the stock of general wealth, intelligence and virtue, 
they are all entitled to their respective shares of influ- 
ence in the measures of government. The slave-hold- 
ing States, therefore, had a right to demand that all 
their slaves should be represented ; they yielded too 
much in agreeing that only three-fifths of them should 
possess that right. I cannot doubt that this would 
have been conceded by the convention, had the princi- 
ple, that representatives and direct taxes should be 
apportioned according to the same ratio, been then 
adopted into the Constitution. It would have been 
perceived that, while the representation of the south- 
ern States w T ould thus have been increased, their share 
of the public taxes would have been increased in the 
same proportion ; and thus they would have stood, in 
all respects, upon the same footing with the other 
States. The northern States would have said to them, 
" Count your people ; it is of no consequence to us 
what is their condition at home ; they are laborers, a^d 
therefore they contribute the same amount of taxable 
subjects, whether black or white, bond or free. "We 
therefore recognize them as people, and give them re- 
presentation as such. All that we require is, that when 
we come to lay direct taxes, they shall be regarded as 
people still, and you shall contribute for them pre- 



228 THE FEDERAL GOVERNMENT : 

cisely as we contribute for our people." This is the 
plain justice of the case ; and this alone would be 
consistent with the great principles which ought to 
regulate the subject. It is a result which is no longer 
attainable, and the South will, as they ought to do* 
acquiesce in the arrangement as it now stands. But 
they have reason to complain that great authors, in 
elaborate works designed to form the opinions of 
rising generations, should so treat the subject as to 
create an impression that the southern States are en- 
joying advantages under our Constitution to which 
they are not fairly entitled, and which they owe only 
to the liberality of the other States ; for the South 
feels that these supposed advantages are, in fact, sacri- 
fices, which she has made only to a spirit of concilia- 
tion and harmony, and which neither justice nor sound 
principle would have exacted of her. 

Regarding this work of Judge Story, as a whole, it 
is impossible not to be struck with the laborious indus- 
try which he has displayed in the collection and pre- 
paration of his materials. He does not often indulge 
himself in speculations upon the general principles of 
government, but confines himself, with great strict- 
ness, to the particular form before him. Considering 
him as a mere lawyer, his work does honor to his 
learning and research, and will form a very useful ad- 
dition to our law libraries. But it is not in this light 
only that we are to view it. The author is a politician, 
as well as a lawyer, and has taken unusual pains to 
justify and recommend his own peculiar opinions. 



ITS TRUE NATURE AND CHARACTER. 229 

This he has done, often at the expense of candor and 
fairness, and, almost invariably, at the exj^ense of his- 
torical truth. We may well doubt, therefore, whether 
his book will produce more evil than good, to the 
country ; since the false views which it presents, of 
the nature and character of our government, are cal- 
culated to exert an influence over the public mind, too 
seriously mischievous to be compensated by any new 
lights which it sheds upon other parts of our Consti- 
tution. Indeed, it is little less than a labored pane- 
gyric upon that instrument. Having made it, by 
forced constructions, and strange misapprehensions of 
history, to conform to his own beau ideal of a perfect 
government, he can discern in it nothing that is de- 
ficient, nothing that is superfluous. And it is his par- 
ticular pleasure to arm it with strong powers, and 
surround it with imposing splendors. In his exami- 
nation of the legislative department, he has displayed 
an extraordinary liberality of concession in this re- 
spect. There is not a single important power ever 
exercised or claimed for Congress which he does not 
vindicate and maintain. The long-contested powers 
to protect manufactures, to construct roads, with an 
endless list of similar objects to which the public 
money may be applied, present no serious difficulty to 
his mind. An examination of these several subjects, 
in detail, would swell this review beyond its proper 
limits, and is rendered unnecessary by the great prin- 
ciples which it has been my object to establish. I 
allude to them here, only as illustrating the general 



230 THE FEDERAL GOVERNMENT : 

character of this book, and as showing the dangerous 
tendency of its political principles. It is, indeed, a 
strong argument in favor of federal power ; and when 
we have said this, we have given it the character 
which the author will most proudly recognize. And 
it is not for the legislature alone, that these unbound- 
ed powers are claimed ; the other departments come 
in for a full share of his favor. Even when he is 
forced to condemn, he does it with a censure so faint, 
and so softened and palliated, as to amount to positive 
praise. 

The principle that ours is a consolidated govern- 
ment of all the people of the United States, and not 
a confederation of sovereign States, must necessarily 
render it little less than omnipotent. That principle, 
carried out to its legitimate results, will assuredly 
render the federal government the strongest in the 
world. The powers of such a government are sup- 
posed to reside in a majority of the people ; and, as its 
responsibility is only to the people, that majority may 
make it whatever they please. To whom is that ma- 
jority itself responsible? Upon the theory that it 
possesses all the powers of the government, there is 
nothing to check, nothing to control it. In a popula- 
tion strictly homogeneous in interests, character and 
pursuits, there is no danger in this principle. "We 
adopt it in all our State governments, and in them it 
is the true principle ; because the majority can pass 
no law which will not affect themselves, in mode and 
degree, precisely as it affects others. But in a country 



ITS TRUE NATURE AHB CHARACTER.. 231 

so extensive as the United States, with great differ- 
ences of character, interests and pursuits, and with 

these differences, too, marked by geographical lines, a 
f iir opportunity is afforded for the exercise of an op_ 
pressive tyranny, by the majority over the minority. 
Large masses of mankind are not apt to be swayed, 
except by interest alone ; and wherever that interest 
is distinct and clear, it presents a motive of action too 
strong to be controlled. Let it be supposed that a 
certain number of States, containing a majority of the 
people of all the States, should rind it to their interest 
to pass laws oppressive to the minority, and violating 
their rights as secured by the Constitution. What re- 
dress is there, upon the principles of Judge Story ? 
Is it to be found in the federal tribunals ? They ar<s 
themselves a part of the oppressing government, and 
are, therefore, not impartial judges of the powers of 
that government. Is it to be found in the virtue and 
intelligence of the people ? This is the author's great 
reliance. He acknowledges that the system, as he un- 
derstands it, is liable to great abuses ; but he supposes 
that the virtue and intelligence of the peo£)le will, un- 
der all circumstances, prove a sufficient corrective. 
Of what people? Of that very majority who have 
committed the injustice complained of, and who, ac- 
cording to the author's theory, are the sole judges 
whether they have power to do it or not, and whether 
it be injustice or not. Under such a system as this, 
it is a cruel mockery to talk about the rights of the 
minority. If they possess rights, they have no means 



232 THE FEDERAL GOVERNMENT I 

to vindicate them. The majority alone possess the 
government ; they alone measure its powers, and 
wield them without control or responsibility. This is 
despotism of the worst sort, in a system like ours. 
More tolerable, by far, is the despotism of one man, 
than that of a party, ruling without control, consult- 
ing its own interests, and justifying its excesses under 
the name of republican liberty. Free government, so 
far as its protecting power is concerned, is made for 
minorities alone. 

But the system of our author, while it invites the 
majority to tyrannize over the minority, and gives the 
minority no redress, is not safo even for that majority 
itself. It is a system unbalanced, unchecked, without 
any definite rules to prevent it from running into 
abuse, and becoming a victim to its own excesses. 
The separation and complete independence of the 
several departments of the government is usually 
supposed to afford a sufficient security against an 
undue enlargement of the powers of any one of them. 
This is said to be the only real discovery in politics, 
which can be claimed in modern times ; and it is gen- 
erally considered a very great discovery, and, perhaps, 
the only contrivance by which public liberty can be 
preserved. The idea is wholly illusory. It is true, 
that public liberty could scarcely exist without such 
separation, and, for that reason, it was wisely adopted 
in our systems. But we should not rely on it with too 
implicit a confidence, as affording in itself any ade- 
quate barrier against the encroachments of power,, or 



ITS TRUE NATURE AND CHARACTER. 233 

any adequate security for the rights and liberties of 
the people. I have little faith in these balances of gov- 
ernment ; because there is neither knowledge nor wis- 
dom enough in man to render them accurate and per- 
manent. In spite of every precaution against it, some 
one department will acquire an undue preponderance 
over the rest. The first excesses are apt to be com- 
mitted by the legislature ; and, in a consolidated gov- 
ernment, such as the author supposes ours to be, 
there is a peculiar proneness to this. In all free gov- 
ernments, the democratic principle is continually ex- 
tending itself. The people being possessed of all 
power, and feeling that they are subject to no authori- 
ty except their own, learn, in the end, to consider the 
very restraints which they have voluntarily imposed 
upon themselves, in their constitution of government, 
as the mere creatures of their own will, which their 
own will may at any time destroy. Hence the legisla- 
ture, the immediate representatives of the popular 
will, naturally assume upon themselves every power 
which is necessary to carry that will into effect. This 
is not liberty. True political liberty demands many 
and severe restraints ; it requires protection against 
itself, and is no longer safe, when it refuses to submit 
to its own self-imposed discipline. 

And let us not sleep in the delusion that we shall 
derive all needful security from our own " intelligence 
and virtue." The people may, indeed, preserve their 
liberties forever, if they will take care to be always 
virtuous, always wise, and always vigilant. And they 



234 THE FEDERAL GOVERNMENT I 

will be equally secure, if they can assure themselves 
that the rulers they may select will never abuse their 
trust, but will always understand and always pursue 
the true interests of the people. But, unhappily, 
there are no such people and no such rulers. A gov., 
ernment must be imperfect, indeed, if it require such 
a degree of virtue in the people as renders all govern- 
ment unnecessary. Government is founded, not in 
the virtues, but in the vices of mankind ; not in their 
knowledge and wisdom, [but in their ignorance and 
folly. Its object is to protect the weak, to restrain the 
violent, to punish the vicious, and to compel all to the 
performance of the duty which man owes to man in a 
social state. It is not a self-acting machine, which 
will go on and perform its work without human 
agency ; it cannot be separated from the human be- 
ings who fill its places, set in motion, and regulate 
and direct its operations. So long as these are liable 
to err in judgment, or to fail in virtue, so long will 
government be liable to run into abuses. Until all 
men shall become so perfect as not to require to b a 
ruled, all governments professing to be] free will re- 
quire to be watched, guarded, checked and controlled 
To do this effectually requires more than we generally 
find of public virtue and public intelligence. A great 
majority of mankind are much more sensible to their 
interests than to their rights. Whenever the people 
can be persuaded that it is their greatest interest to 
maintain their rights, then, and then only, will free 
government be safe from abuses. 



ITS TRUE NATURE AND CHARACTER. 235 

Looking at our own Federal Government, apart 
from the States, and regarding ic, as Judge Story 
would have us, as a consolidated government of all the 
people of the United States, we shall not find in it 
this salutary countervailing interest. In an enlarged 
sense, it is, indeed, the greatest interest of all to sup- 
port that government in its purity; for, although it is 
undoubtedly defective in many important respects, it 
is much the best that has yet been devised. Unhap- 
pily, however, the greatest interest of the whole is not 
felt to be, although in truth it is, the greatest interest 
of all the parts. This results from the fact, that our 
character is not homogeneous, and our pursuits are 
wholly different. Rightly understood, these facts 
should tend to bind us the more closely together, by 
showing us our dependence upon each other ; and it 
should teach us the necessity of watching, with the 
greater jealousy, every departure from the strict prin- 
ciples of our union. It is a truth, however, no less 
melancholy than incontestable, that if this ever was 
the view of the people, it has ceased to be so. And it 
could not be otherwise. Whatever be the theory of 
our Constitution, its practice, of late years, has made 
it a consolidated government ; the government of an 
irresponsible majority. If that majority can find, 
either in the pursuits of their own peculiar industry, 
or in the offices and emoluments which flow from the 
patronage of the government, an interest distinct 
from that of the minority, they will pursue that in- 
terest, and nothing will be left to the minority but 



236 THE FEDERAL GOVERNMENT ! 

the poor privilege of complaining. Thus the govern- 
ment becomes tyrannous and oppressive, precisely in 
proportion as its democratic principle is extended ; 
and instead of the enlarged and general interest 
which should check and restrain it, a peculiar interest 
is enlisted, to extend its powers and sustain its 
abuses. Public virtue and intelligence avail little, in 
such a condition of things as this. That virtue falls 
before the temptations of interest which you present 
to it, and that intelligence, thus deprived of its en- 
couraging hopes, serves only to point out new objects 
of unlawful pursuit, and suggest new and baser 
methods of attaining them. 

This result could scarcely be brought about, if the 
Federal Government were allowed to rest on the prin- 
ciples upon which I have endeavored to place it. The 
checking and controlling influences which afford safety 
to public liberty, are not to be found in the govern- 
ment itself. The people cannot always protect them- 
selves against their rulers ; if they could, no free 
government, in past times, would have been over- 
thrown. Power and patronage cannot easily be so 
limited and defined, as to rob them of their corrupt- 
ing influences over the public mind. It is family and 
wisely remarked by the Federalist, that "a power 
over a man's subsistence is a power over his will." As 
littie as possible of this power should be entrusted to 
the Federal Government, and even that little should 
be watched by a power authorized and competent to 
arrest its abuses. That power can be found only in 



ITS TRUE NATURE AND CHARACTER. 237 

the States. In this consists the great superiority of 
the federative system over every other. In that sys- 
tem, the Federal Government is responsible, not 
directly to the people en masse, but to the people in 
their character of distinct political corporations. 
However easy it may be to steal power from the peo- 
ple, governments do not so readily yield to one another. 
The confederated States confer on their common gov- 
ernment only such power as they themselves cannot 
separately exerc ; se, or such as can be better exercised 
by that government. They have, therefore, an equal 
interest, to give it power enough, and to prevent it 
from assuming too much. In their hands the power 
of interposition is attended with no danger ; it may 
be safely lodged where there is no interest to abuse it. 
Under a federative system, the people are not liable 
to be acted on (at least, not to the same extent,) by 
those influences which are so apt to betray and enslave 
them, under a consolidated government. Popular 
masses, acting under the excitements of the moment, 
are easily led into fatal errors. History is full of ex- 
amples of the good and great sacrificed to the hasty 
judgments of infuriated multitudes, and of the most 
fatal public measures adopted under the excitements 
of the moment. How easy it is for the adroit and 
cunning to avail themselves of such occasions, and 
how impossible it is, for a people so acted on, to 
watch their rulers wisely, and guard themselves 
against the encroachments of power ? In a federa- 
tive system, this danger is avoided, so far as their 



238 THE FEDERAL GOVERNMENT : 

common government is concerned. The right of in- 
terposition belongs, not to the people in the aggre- 
gate, but to the people in separate and comparatively 
small subdivisions. And even in these subdivisions, 
they can act only through the forms of their own 
separate governments. These are necessarily slow 
and deliberate, affording time for excitement to sub- 
side, and for passion to cool. Having to pass through 
their own governments, before they reach that of the 
United States, they are forbidden to act until they 
have had time for reflection, and for the exercise of a 
cool and temperate judgment. Besides, they are 
taught to look, not to one government only, for the 
protection and security of their rights, and not to feel 
that they owe obedience only to that. Conscious that 
they can find, in their own State governments, pro- 
tection against the wrongs of the Federal Govern- 
ment, their feeling of dependence is less oppressive, 
and their judgments more free. And while their ef- 
forts to throw off oppression are not repressed by a 
feeling that there is no power to which they can ap- 
peal, these efforts are kept under due restraints, by a 
consciousness that they cannot be unwisely exerted, 
except to the injury of the people themselves. It is 
difficult to perceive how a Federal Government, estab- 
lished on correct principles, can ever be overthrown, 
except by external violence, so long as the federative 
principle is duly respected and maintained. All the 
requisite checks and balances will be found, in the 
right of the States to keep their common government 



ITS TRUE NATURE AND CHARACTER. 239 

within their common sphere ; and a sufficient security 
for the due exercise of that right is afforded by the 
fact, that it is the interest of the States to exercise it 
discreetly. So far as our own government is con- 
cerned, I venture to predict that it will become abso- 
lute and irresponsible, precisely in proportion as the 
rights of the States shall cease to be respected, and 
their authority to interpose for the correction of fed- 
eral abuses shall be denied and overthrown. 

It should be the object of every patriot in the 
United States to encourage a high respect for the 
State governments. The people should be taught to 
regard them as their greatest interest, and as the first 
objects of their duty and affection. Maintained in 
their just rights and powers, they form ihe true bal- 
ance-wheel, the only effectual check on federal en- 
croachments. And it possesses as a check these dis- 
tinguishing advantages over every other, that it can 
never be applied without great deliberation and cau- 
tion, that it is certain in its effects, and that it is but 
little liable to abuse. It is true that a State may use 
its power for improper purposes, or on improper oc- 
casions ; but the Federal Government is, to say the 
least of it, equally liable to dangerous errors and vio- 
lations of trust. Shall we then leave that govern- 
ment free from all restraint, merely because the 
proper countervailing power is liable to abuse ? Upon 
the same principle we should abandon all the guards 
and securities which we have so carefully provided in 
the Federal Constitution itself. The truth is, all 



240 THE FEDEEAL GOVEENMEHT I 

checks upon government are more or less imperfect ; 
for if it were not so, government itself would be per- 
fect. But this is no reason why we should abandon it 
to its own will. vVe have only to apply to this sub- 
ject our best discretion and caution, to confer no more 
power than is absolutely necessary, and to guard that 
power as carefully as we can. Perfection is not to be 
hoped for ; but an approximation to it, sufficiently 
near to afford a reasonable security to our rights and 
liberties, is not unattainable. In the formation of the 
Federal Government we have been careful to limit its 
powers and define its duties. Our object was to rencW 
it such that the people should feel an interest in sus- 
taining it in its purity, for otherwise it could not long 
subsist. Upon the same principle, we should enlist 
the same interest in the wise and proper application 
of those checks, which its unavoidable imperfections 
render necessary. That interest is found in the 
States. Having created the Federal Government at 
their own free will, and for their own uses, why should 
they seek to destroy it? Having clothed it with a 
certain portion of their own powers, for their own 
benefit alone, why should they desire to render those 
powers inoperative and nugatory '? The danger is, 
not that the States will interpose too often, but that 
they will rather submit to federal usurpations, than 
incur the risk of embarrassing that government, by 
any attempts to check and control it. Flagrant 
abuses alone, and such as public liberty cannot en- 



ITS TBUE NATUEE AND CHARACTER. 241 

dure, will ever call into action this salutary and con- 
servative power of the States. 

But whether this check be the best or the worst in 
its nature, it is at least one which our system allows. 
It is not found within the Constitution, but exists in- 
dependent of it. As that Constitution was formed by 
sovereign States, they alone are authorized, whenever 
the question arises between them and their common 
government, to determine, in the last resort, what 
powers they intended to confer on it.* This is an in- 
separable incident of sovereignty ; a right which be- 
longs to the States, simply because they have never 
surrendered it to any other power. But to render 
this right available for any good purpose, it is indis- 
pensably necessary to maintain the States in their 
proper position. If their people suffer them to sink 
into the insignificance of mere municipal corpora- 
tions, it will be in vain to invoke their protection 
against the gigantic power of the Federal Govern- 
ment. This is the point to which the vigilance of the 
people should be chiefly directed. Their highest in- 
terest is at home ; their palladium is their own State 
governments. They ought to know that they can 
look nowhere else with perfect assurance of safety and 
protection. Let them then maintain those govern- 
ments, not only in their rights, but in their dign'ty 
and influence. Make it the interest of their people 



* Elsewhere we have shown that snch was the understanding' of those 
who framed the Constitution of the States when they adopted it.— [C. C. B. 



242 



THE FEDERAL GOVERNMENT, ETC. 



to serve theni ; an interest strong enough to resist all 
the temptations of federal office and patronage. Then 
alone will their voice be heard with respect at Wash- 
ington ; then alone will their interposition avail to 
protect their own people against the usurpations of 
the great central power. It is vain to hope that the 
federative principle of our government can be pre- 
served, or that anything can prevent it from running 
into the absolutism of consolidation, if we suffer the 
rights of the States to be filched away, and their dig- 
nity and influence to be lost, through our carelessness 
or neglect. 



VAN EVRIE, HOBTON & CO.'S 

OF VALUABLE 

Aiti-AMli nil Democratic PuWications. 

■ < * » » » 

DEMOCRATIC PUBLISHING HOUSE, 

No. 162 NASSAU STREET, 

New York, 1868. 

The undersigned would respectfully call the attention of Democrats 
and the public generally, to a list of their publications. Eor years and 
years there has been no effort made to stem the tide of anti democratic 
literature with which our country has been flooded. The result has 
been, that even the elementary principles of Republican Government 
seem to have been almost obliterated, and the semi-monarchial, or 
British ideas of government which our forefathers overthrew in the 
Revolution of 1776, are becoming widely prevalent. 

It is not the intention of the Publishers to have their issues simply 
partisan. We have called them ' ' Democratic, " but strictly speaking, 
if good wordshadnot often been used for bad purposes, our publications 
are American, with American ideas, American sentiments, and American 
principles, such as were entertained by the great men who founded our 
government. 

We trust that every person, no matter what his politics may be, in 
whose hands this Catalogue may fall, will order one or more of our pub- 
lications. 

Democrats should do it from a laudable desire to encourage and sus- 
tain efforts to advance their own principles. Their opponents ought 
to do it in order to see the reasons and arguments which compel their 
Democratic neighbors to differ from them. 

All or any of our publications may be obtained in one of the follow- 
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Address, VAN EVRIE, HORTON & CO., Publishers, 
m» No. 162 Nassau Street, New York. 
*** AGENTS WANTED-Send for terms. 



White Men Must Rule America! 



NEW YORK DAY-BOOK 

FOIR, 1868. 

The New York Day-Book is a straightforward, Radical Democratic paper, 
with a larger circulation than any other Democratic journal ever published on 
this Continent, and it enters on the threshold of 1868 more prosperous and 
more hopeful of the great cause it upholds than ever before. Standing on 

the foundation of the Declaration of Independence, that ■« all (white) men are created 
equal," and therefore entitled to equal rights, it is opposed to all forms and degrees of 
special legislation that conflict with this grand central truth of Democracy, and over 
all, and above all, does it combat that monstrous treason to American liberty, 
which, thrusting the negro element into our political system, must of necessity wreck the 
whole mighty fabric left us by our fathers. God has created white men superior, and 
negroes inferior, and therefore all the efforts of the past five years to abolish His work, 
and equalize with negroes — every law violated, every State Constitution overthrown, 
every life sacrificed, and every dollar expended, are necessarily just so many steps to- 
wards national suicide ; and the simple and awful problem now upon us is just this — 
shall we recover our reason and retrace our steps, or march on to Mongrelism, social 
anarchy, and the total ruin of our country ? 

Thb Day-Book, therefore, demands the restoration of the "Union as it was," — a 
Union of co-equal States upon the white basis — as the only hope, and the only means pos- 
sible under heaven for saving the grand ideas of 1776 — the fundamental principles of 
American liberty— and if the real friends of freedom, and the earnest believers in that 
sacred and glorious cause in which the men of the Revolution offered up their lives, will 
now labor to expose the ignorance, delusion and treason of the Mongrel party, it will 
succeed, and the white Republic of Washington be restored again in all its original 
beneficence and granduer. 

The Day-Book will, however, hereafter be more than ever devoted to all the varied 
purposes of a news paper. Concious that it reaches thousands of families who take no other 
journal, beyond perhaps their local paper, it will continue and improve its " News of the 
Week" Summary, so as to present a transcript of the World's events in each issue. 
Its "Family Department" will embrace the best original and selected stories. Its 
tC Agricultural Department " will be fully sustained, and being the only paper of its 
class made up expressly for Country circulation, it is confident that it is worth double 
the price of a weekly hurriedly reprinted from a daily. It gives full and com- 
plete Reports of the New York and Albany Cattle Markets ; Grain, Provision 
and Cotton Markets, and a Weekly Review of Financial Matters, together with 
the Markets, by Telegrpah, from New Orleans, Chicago, Charleston, Philadel- 
phia, &c, &c, up to the time of going to press. 

TERMS— CASH IN ADVANCE. 

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Three Copies, one year,.— 6 50 

Five Copies, one year, and one to the getter up of the Club, 10 00 
Ten Copies, one year, " " " " " 17 60 

Twenty Copies, one year, " " " " " 30 00 

Send for Specimen Copies and handbills for use, wherever they can be advantageous- 
ly distributed, and give us the names and post-office addresses of all who would be likely 
to subscribe or get up Clubs. 

The Day-Book has very rarely employed a single agent for extending its circulation, 
but has relied upon the individual exertions of patriotic men, and the inducement of re- 
ducing its prices to CLUBS, so as to give the subscriber the benefit of tho commission 
usually taken by agents. It is furnished to CLUBS AT COST PRICES, and every per- 
son who approves of its principles is requested and urged to act for it in his own neighbor- 
hood, get up Clubs and send on subscriptions. 

The Day-Book and Old Guard for 1868 will be sent together for $4 50. The Old 
Guard will be sent in place of extra copies, if desired, by enclosing fifty cents extra. 
Address, giving post-office, County and State in full, 

YAN EVFJE, HORTON & CO., Publishers, 

No. 163 Nassau Street, New York. 
■Tyyfyyyyy*yyyy y yyyyy y yyyyyyTyyyyyy f yyy> y yy y yy v y y yy*yf » > \ 



OPINIONS OF THE PRESS. 



The New Yobk Day-Book. — Perhaps there is no paper in the country that has 
labored so hard during the last three years in the cause of true Democracy as The 
New York Day-Book. Truthful, bold, "outspoken, it has never hesitated to call the 
Abolition miscegen crew by their proper names. It has always opposed and de- 
nounced the outrageous and disgraceful fusion scheme of the policy men the 
Democratic party is unfortunately cursed with in every State in the Union, and 
though its warnings have to a great extent been unheeded, its predictions have 
always proved true. One of the first papers to be suppressed by the order of the 
departed "Illinois saint, it has after all persecution, arisen from its ashes, and phoenix 
like, is stronger and more vigorous to-day than ever before. As a commercial paper, 
The Day-Book stands at the head of the column, and its stories and anecdotes are 
of a high order. Our advice to Democrats of the Old School, who desire a paper 
that will please them, is to subscribe at once for The Day-Book. — {Delphis (Ind.) 
Times. 

The New Yoek Day-Book. — This sterling publication comes to us regularly, and 
has come to be regarded by us as a desideratum in our sanctum. The Editor, Dr. 
Van Evrie, is one of the ablest as well as one of the boldest political writers of whom 
we have any knowledge. He designates things by their right names, and dares to 
beard the lion in his den. When we first became a reader of The Day-Book, years 
ago, we were astonished at the audacity (as we then viewed the subject) of the po- 
sitions assumed in its columns on the question of "slavery." It fearlessly promul- 
gated the doctrine that the social subordination, miscalled slavery, of the negro in 
i America, was his normal condition, a position in society exactly suited to his condi- 
| tion, capacity and wants ; that his relation to the white or superior race was one dic- 
I tated and shaped by Him who planned our being, and governs the destinies of na- 
i tions in accordance with the enlightenment thereof, and their conformity to His 
1 laws ; and that to interfere with this relation was an innovation upon His wisdom, 
and would entail untold disaster upon both races. All this we have verified during 
i the past five years. Indeed, the present editor of The Day-Book, in commenting 
: upon a correspondence written by ourself in 1856, for that paper, predicted in a 
supposed contingency, very nearly the same character of a war, together with its 
results, as has disgraced the American name during the first half of this -decade. 
The Day-Book was, of course, under the ban during the war, as all papers and all 
persons were, who were possessed of the manhood and honesty to say that black 
was not white. It is now, however, out in all its wonted vigor, pouring huge vol- 
leys of reason and common sense into the- ranks of disunion Abolitionism. — 
[Lafayette (Oregon) Courier. 



THE OXLY DEMOCRATIC MAGAZINE PUBLISHED IN THE EXITED STATES. 
Vol. 6. 1868. 

THE OLD GUARD, 

$. Monthly Magazine, 

Devoted to Literature, Science and Art, and the Political Principles of 1776—1860. 



In offering to the public the Prospectus for the Sixth Volume of The Old Guard, 
the editor and publishers feel confident that no explanation of the character of the 
work is needed. Besides the political matter, of great importance, bearing upon 
the principles of the approaching Presidential Campaign, we shall publish a 
series of articles from the pen of Dr. Van Evrie, on the Baces of Men, which will 
be illustrated by beautiful plates of the different types of mankind. This new feature 
of the Mao- azine will greatly increase the cost oi publication, but no additional 
price will be charged subscribers, or news agents. We have also had translated 
expressly for this Magazine, one of the most thrilling popular historical novels 
ever published in the Italian language, covering the History of the Pall of the 
Italian States, under the horrible rule of Ca?sar Borgia, Duke of Valentine, writ- 
ten by Monte Verde, which will, we are confident, excel in popular interest, any 
novel to be brought before the American public during the year 1868. Besides a 
thrilling love-plot, it unvails with a pen of fire, the terrible arts and desperate 
deeds which tyranny always resorts to in fastening its miseries upon mankind. 
This great novel is most appropriately brought out in this country at the present 
time, and cannot fail to make a profound sensation. Other great literary novel- 
ties will appear in the Sixth Volume of The Old Guard, which will, it is believed, 
render it even more acceptable to the fireside than its predecessors. 



TERMS, CASH IN ADVANCE 

1 Copy, 1 year, - - - $ 3 00 

2 Copies, - - - - - 5 50 
4 Copies, 10 00 



5 Copies, & 1 to getter-up of Club, $14 00 
10 4i " " " 25 00 

20 " " " " 45 00 



A MjLGNIFICEXT PREJIIITJK.—We will send per express, carefully boxed, a 
Grover & Baker Sewing Machine, to any one who will send us, at any one time, THIRTY 
SUBSCRIBERS to The Old Guard, at $3 OO each. The regular manufacturers' price is 
$55. No such opportunity to circulate a superior FAMILY MAGAZINE, and secure a first- 
class FAMILY SEWING MACHINE, was ever offered. The subscribers may be sent to 
different Post-Offices. 

In remitting by mail, a Post-Office Order or Draft on New York, payable to the order 
of the publishers, is preferable to bank notes, as, should the Order or Draft be lost or 
stolen, it can be renewed without loss. If neither of these can be procured, send United 
States or National Bank Notes, in Registered Letter. 

Subscriptions may commence with any number. When no time is specified, it will be 
understood that the subscriber wishes to begin with the January number, the first one of 
the volume, and back numbers will be sent accordingly. 

As The Old Guard is stereotyped, back volumes can always be furnished. Yols. I. and 
II. at $2 50 per copy. Vol. III., for 1865, $3 00. Vol. IV., 1866, $4 00. Vol V., 1867, $4 00. 
All post-paid. The Complete Set, $15, postage paid. Single Copies, Twenty-five cents. 

All letters should be addressed as follows: 

VAN EYRIE, H0ET0N & CO., Publishers, 182 Nassau St, N. Y. 

4®= Agents wanted in every County of the United States to get Subscribers for The Old 
Guard. For terms, address Publishers. 



J 



Back Volumes of The Old G-nard. 



THE OLD GUARD. Vol. 1, 1863, contains Steel Portraits of Horatio Sey- 
mour, Hon. C. L. Vallandigham, Gov. Parker, of New Jersey, Hon. D, W.Yoor- 
hees, Hon. J. A. Bayard, Hon. F. Wood, Hon. B. Wood, and Hon. G. W. 
Woodward. Pp. 288, octavo. Price, $2 50. 

Among the important articles in this volume is a translation, entire, of the celebrated 
Declaration of Eights, put forth by the French nation, six years after the formation of our 
Constitution. 

THE OLD GUARD. Vol. 2, 1864, contains Steel Portraits of Mayor Gun- 
ther, T. H. Seymour, J. W. Wall, E. B. Olds, B. B. Taney, Alex. Long, S. S. 
Cox, G. J. Tucker, B. M. Price, G„ H. Pendleton and Daniel Holsman. Octa- 
vo, 284pp. Price, $2 50. 

Among the valuable articles in this volume is one entitled, " Civilization in the Free and 
Slave States," giving statistics as to the moral, social and pecuniary condition of the people 
of each section — a startling article to many readers; another, entitled, "Nullifiers of the 
North," giving the Personal Liberty Bills of each Northern State; in another article the Alien 
and Sedition Laws are given, together with Acts of Virginia in relation thereto. " A History 
of Northern Disunion " is also contained in this volume; also the Acts of the Conventions 
of New York and Virginia in adopting the Federal Constitution, &c, &c. 



THE OLD GUARD. Vol. 3, 1865, contains the New Novel by Dr. T. Dunn 
English, in full, entitled, " The Peer and the Printer ;" also, Valuable Polit- 
ical Articles. Octavo, 572 pp. Price, $3 00. 

Among the important articles in this volume we may mention "The Civilization of the 
Tropics," "Have States a Bight to withdraw from the Union?" "Our Colonial and State 
Unions," "The American Baces," " History of the Northern War of Tariffs on the South," 
" White Supremacy and Negro Subordination," " Massachusetts and Virginia," " Sketch of 
the Bise and Progress of Puritanism," "History of Old Brown," by President Johnson ; 
" The Crimes of New England," " The South Poor in Cash, the North Bankrupt in Honor," 
" The Crimes of Modern Philanthropy," "The Meaning of the Phrase, People of the United 
States," " Singular Becords of the French Bastile," " Aphorisms on Government and Liber- 
ty," "The Author of the Federalist Copperheads," "Spirit of Freedom in the English Par- 
liament, from 1641 to 1796," "Camp Lee, Bichmond." 



THE OLD GUARD. Vol. 4, 1866, contains Steel Portraits of General B. E. 

Lee, Stonewall Jackson, J. E. Johnston, Beauregard, Ewell, Longstreet, 

Wade Hampton, Polk, Sterling Price, G. W. Smith, J. E. B. Stuart, and A. P. 

Hill. Octavo, 768 pp. Price, $4= 00. 

This volume also contains, besides valuable political and literary articles, the popular 
story of '•' Bertha Seely, the Heroine of the Old Dominion," by Professor Peck, of Georgia, 
giving the inside of Virginia life during the great Civil War. 

*** These volumes contain discussions on all the prominent topics of the day. 
They form of themselves a most useful and valuable Political. Llbkary, which 
no person who desires to be posted, or to have a magazine of facts, with which 
to confound his political opponent, can afford to be without. They may be said 
to be indispensable, not only to the politician and political student, but to the 
Merchant, Farmer, Mechanic, and all who desire to be politically intelligent. 
Besides political reading, however, they contain a vast amount of literary matter, 
gossip, humor, poetry, satire, &c, &c. 

jg@= The entire set will be sent, postage paid, to any part of the United States, 
for $11 00. 

VAN EVRIE, H0RT0N & CO., Publishers, 

1 62 Nassau Street, New York. 



TI-ABOLITIOH TRACTS. 

— i m_* i 

For twenty-five or thirty years the Abohtionists have deluged the country with innumera- 
ble books, pamphlets and tracts, inculcating their false and pernicious doctrines. Little or 
nothing has ever been done in the same way towards counteracting their influence. Thou- 
sands now feel that such publications are indispensably necessary. In order to supply what 
it is believed is a wide-felt want, the undersigned have determined to issue a series of '-Anti- 
Abolition Tracts," embracing a concise discussion of current political issues, in such a cheap 
and popular form, and at such a merely nominal price for large quantities, as ought to secure 
for them a very extensive circulation. The following numbers of these Tracts have been 
issued : 

No. l.-ABOLITION IS NATION AX DEATH ; or, The Attempt to Equal- 
ize Races, the Destruction of Society. Pp. 32. Price 10 Cents. 

The object of this Tract is to show to the deluded victims of the Abolition theory, that, 
could it be reduced to practice, it must result in social disintegration and national death. 



No, 2.— FREE NEGROISM ; or, Results of Emancipation in the North and 
the West India Islands; with Statistics of the Decay of Commerce, Idle- 
ness of the Negro, his Return to Savagism, and the Effect of Emancipa- 
tion upon the Panning-, Mechanical and Laboring- Classes. Price 10 Cts. 
Pp. 32. 

This is a brief history of the Results of Emancipation, showing its wretched and miserable 
failure, and that Negro Freedom is simply a tax upon White Labor. The facts in relation to 
the real condition of the Freed Negroes in Hayti, Jamaica, &c, have been carefully sup- 
pressed by the Abolition papers, but they ought to be laid before the public, so that the evils 
which now afflict Mexico, Hayti and all countries where the Negro-equalizing doctrines have 
been tried, may be known and understood. 



No. 3— THE ABOLITION CONSPIRACY; or, a Ten Years' Record of the 
"Republican" Party. Price 10 Cents. Pp. 32. 

This Tract embraces a collection of extracts from the speeches and writings of William 
Lloyd Garrison, Wendell Phillips, Abraham Lincoln, "William H. Seward, S. P. Chase, Horace 
Greeley, John P. Hale, and many others, giving the origin and object of the Republican 
Party and the Helper Programme, with the sixty-eight Congressional endorsers, kc. 



No. 4.— THE NEGRO'S PLACE IN NATURE. A Paper read before the 
London Anthropological Society. By Dr. James Hunt, President of the 
Society. Octavo, 32 pp. Price 10 Cents. 

This is a scientific exposition, in a popular form, of the Negro's position in the scale of 
creation, without any reference to political or party questions. It is an admirable Tract to 
place in the hands of "Republicans " to start them on the way "to get a knowledge of the 
truth. ' ' 

No. 5.— THE SIX SPECIES OF MEN— With Cuts representing the Types 
of the Caucasian, Mongol, Malay, American Indian, Esquimaux, and 
Negro. Octavo, 32 pp. Price 10 Cents. 
This is one of the most important Tracts in the series, as it presents, in popular form, the 

radical and organic differences between the several races or species of men, as well as The 

fundamental laws which govern all animate creation. Some of the objections to the doctrine 

of distinct species of men are also noticed. 



*%* These Tracts are sent, postage paid, for ten cents single copies, or one dollar per 
dozen ; or five dollars per hundred, by express. Democratic Committees, Associations, 
&c, ordering one thousand at a time, will be furnished them at exactly cost price. 

VAN EVRIE, HORTON & CO., Publishers, 

1 62 Nassau Street, New York. 

Agents Wanted to sell the above, and all our Publications. 



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